IN THE
MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN
NATIONAL RAILWAY COMPANY
("Company")
AND:
NATIONAL
AUTOMOBILE, AEROSPACE, TRANSPORTATION
AND
GENERAL WORKERS OF CANADA (CAW-TCA CANADA)
("Union")
IN THE
MATTER OF:
19
GRIEVANCES
SOLE
ARBITRATOR:
Kevin M. Burkett
APPEARANCES
FOR THE COMPANY:
Ron
Bowden -
Manager, Labour Relations, Toronto
Dirk
Veenisl -
Manager, Labour Relations, Toronto
Ross
Bateman -
Sr. Manager Labour Relations, Toronto
APPEARANCES
FOR THE UNION:
Brian
McDonagh -
National Representative
John
Gouveia -
Vice-President Local 100
A hearing in this matter was held on September 25, 2006 in Toronto, Ontario.
I N T E R I
M
A W A R D
I have been appointed by the Minister under
the Canadian Labour Code, Part I, to adjudicate upon some 19 grievances
involving these parties. There is no dispute with respect to my appointment in
this regard. However, the Employer takes the position that these grievances are
untimely under the mandatory time limits contained in rules 27 and 28 of the
collective agreement and, therefore, are deemed abandoned under these rules.
The Employer position is based upon the general application of these time
limits to all 19 grievances and the consequences that it flow from the Union's
failure to comply with them. The Union, while acknowledging that these time
limits are mandatory and conceding that it did not meet the time limit for
processing these grievances to arbitration, asserts that the Employer is nevertheless
estopped from relying upon them to defeat these grievances.
It was determined at the outset that,
rather than proceed on a case by case basis, I would entertain evidence and
argument in respect of the general application of these time limits to all 19
grievances, with the Union reserving its right to argue for relief under the
Code in any given case should it be found that the grievances are untimely
under the collective agreement. These grievances will proceed to a hearing on
their individual merits should it be found that they are timely, subject to a
determination with respect to the Employer position that all grievances under
this collective agreement must be heard in the chronological order in which
they are filed.
The relevant provisions of the
collective agreement are set out below:
Grievance
Procedure
27.6 Should employees subject to this Agreement believe they have been
unjustly dealt with, or that any of the provisions of this Agreement have been
violated, they shall present their alleged grievance to their immediate
supervisor for adjustment. If not so adjusted, and they wish to have the matter
progressed, they 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 occurrence of
alleged grievance.
27.7 Step I
Within 35 calendar days of
the alleged grievance, the authorized local union representative(s) may
progress the grievance in writing, outlining all pertinent details and date of
grievance to the designated railway officer (Line Points, Running Shops and
Transcona Shops: Authorized Local Union Representative to Shop
Supervisor/Manager).
A decision shall be rendered
in writing within 29 calendar days from the date of receipt of the grievance
and a copy will be furnished to the employee and the authorized union
representative.
Step II
If the matter remains
unresolved, within twenty-eight (28) calendar days following receipt of the
decision under Step I, the Regional Vice-President of the Union may appeal the
decision in writing to the designated Company Officer as per the following:
Line
Points on Districts: Regional Vice-President to Division Mechanical Officer
Running
Shops: Regional Vice-President to Division Mechanical Officer
Transcona
Shops: Regional Vice-President to Chief Mechanical Officer, Car or Chief
Mechanical Officer, Motive Power
Where the appeal concerns
the interpretation or alleged violation of the collective agreement, the appeal
shall identify the Rule(s) and clause of the Rule(s) or Appendix involved. The
appeal shall be accompanied by a copy of the Company's decision rendered at
Step II of the grievance procedure.
A decision shall be rendered
in writing within twenty-eight (28) calendar days of receipt of the grievance.
Joint
Conference
The Company and the Union
recognize the necessity of reviewing all details of differences through open
and frank discussions. To that end, following the submission of a grievance at
Step II of the grievance procedure, each grievance may be reviewed through a
Joint Conference discussion between the Regional Vice-President and the
designated Company Officer. Said discussion will be held between the
above-mentioned representatives no later than thirty-five (35) calendar days
following the receipt of the grievance at Step II or as otherwise mutually
arranged.
A decision will be rendered
by the Company, in writing, within 14 days from the date of the joint
conference or within 28 days from the date when either party advises the other,
in writing, that a joint conference discussed will not be required for the case
at hand.
Note 1: Each party will notify the other of any changes in designated
officers.
Note 2: All grievances and responses, at all steps of the grievance
procedure must be submitted in writing. Verbal or "email" grievances,
not submitted in written form shall not be considered as having been properly
transmitted, and therefore may, unless remedied, trigger the provisions of Rule
27.9.
27.8 Upon request from either party reasonable effort will be made to
have meetings held within the allotted times.
27.9 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 Steps 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.
27.10 The time limits specified in Steps I or II may be extended by mutual
agreement between the parties referred to in each such step.
Final
Disposition of Grievances
28.1 A grievance concerning the interpretation or alleged
violation of this Agreement, or an appeal by employees that they have been
unjustly disciplined or discharged, and which is not settled through the
grievance procedure may be referred by either the Headquarters Labour Relations
Department, Canadian National Railway Company or the National Automobile,
Aerospace, Transportation and General Workers Union of Canada (CAW-Canada)
Local 100 herein defined as the parties to a single arbitrator for final and
binding settlement without stoppage of work.
28.2 The party requesting arbitration must so notify the other party in
writing within sixty (60) calendar days following the date when the decision
was rendered at the last step of the grievance procedure, as per the following:
Line Points and Running
Shops: Regional Vice-President or President Local 100 to Divisional
Vice-President
Transcona Shops: Regional
Vice-President or President Local 100 to Vice-President, Mechanical/Engineering
28.3 Within forty-five (45) calendar days of date of receipt of a
request for arbitration the parties shall endeavour to agree on the name of the
arbitrator. If agreement is not then reached, the party requesting arbitration
may then request the Minister of Labour to appoint an arbitrator and advise the
other party accordingly. Such request to the Minister of Labour must be made no
later than fourteen (14) calendar days following the 45-day period referred to
in this paragraph.
28.9 The time limits as provided in this Rule 28 may be extended by
mutual agreement between the parties.
It is important to make clear at the
outset that the time limits contained in rules 27 and 28 are mandatory; that
the parties are agreed in this regard; that these grievances are untimely under
rule 28; that the authorities cited by the Employer make it clear that a
failure to meet these time limits renders a grievance inarbitrable; and that if
the Employer is not estopped from relying upon these mandatory time limits,
these grievances must be rejected as inarbitrable. It follows that the
threshold issue to be decided is whether the Employer is thus estopped.
Estoppel is an equitable doctrine that
applies in circumstances where one party to a contract makes a representation
to the other party to that contract, either by word or by deed, that it does
not intend to rely upon its strict legal rights under the contract and the
second party to the contract relies upon this representation to its detriment.
It would not be fair in these circumstances to allow the party making the
representation to then, without giving the other party clear notice of an
altered intention, rely on its strict legal rights going forward to the
detriment of the other party. The effect would be tantamount to allowing one
party to entice the other party onto a limb before sawing it off.
The fundamental underlying fact in
this case is that the mandatory time limits under rules 27 and 28 have not been
enforced for a number of years. Regardless of whether grievances have been
referred to a joint committee, mandatory time limits have not been enforced.
Grievances have simply been warehoused without regard to time limits and then
processed at the convenience of the parties. Indeed, the January 24, 2006
letter from the Employer to the Union, identifying some 41 grievances that it
considers abandoned, lists grievances filed as far back as the year 2000. The
backlog of grievances that had not been advanced in accord with the rule 27 and
28 time limits and remained outstanding was, in the words of the Employer
spokesperson, "out of control."
The Employer takes the position that
even if the processing of time deficient grievances without objection
constitutes a representation that it would not rely on the collective agreement
time limits, which it does not concede, its May 2, 2005 letter to the Union,
coupled with the naming of arbitrators in subsequent cases, effectively put the
Union on notice that from May 2, 2005 forward, strict time limits would be enforced.
The May 2, 2005 letter reads as follows:
May 2, 2005
Mr. J. Gouveia
Vice-President, Great Lakes
Region
CAW – Local 100
5 Robert Street
Thornton, Ontario
L0L 2N0
Dear Mr Gouveia
As you know I have recently
been appointed Manger (sic) Labour Relations in Toronto taking care of the CAW
portfolio, and part of my mandate is to deal with the backlog of outstanding
Grievances and with this being said I fully intend on doing my utmost to bring
all cases up to date as soon as possible. However, to be candid with you, it
will take me some time to review the files, which in most cases are not
complete.
In closing I am committed
towards a good working relationship with you and your colleagues, which should
mutually benefit your members and our employees.
Thanking you in advance for
your understanding and co-operation in this regard I remain.
Yours Truly
R A Bowden
I start by confirming that time limits
under a collective agreement serve the necessary purpose of causing a grieving
party to identify collective agreement disputes as they arise and by requiring
the parties to process these disputes in an efficacious manner so that the
other side can respond while memories are fresh and documents, etc. are readily
available. Mandatory time limits serve the purpose of expediting the resolution
of these workplace disputes, thereby minimizing the frustration and unrest
caused by a backlog of grievances. It follows that the Employer's intention to
eliminate the backlog of unresolved grievances under this collective agreement
was based on sound labour relations principles.
Having said this, however, it must
nevertheless be found that the long history of allowing grievances to be
processed under this collective agreement without regard to the mandatory time
limits contained therein constituted a representation by conduct by the
Employer to the Union that it did not intend to strictly enforce these time
limits even though framed in mandatory terms. What other message could the
Union take from the failure of the Employer to enforce the time limits over a
prolonged period? Further, it must be found that the Union relied upon this
representation to its detriment when it failed to process the instant
grievances in accord with these time limits – the detriment being that it risked
having these grievances dismissed as out of time; the result that the Employer
now seeks.
As with any estoppel, the triggering
representation can be retracted with the giving of a clear and unequivocal
notice to the other side of a change of intention such that, once the detriment
is alleviated, the estoppel no longer has prospective application. Was such a
notice given in this case? The answer must be in the negative. The Employer
relies on the May 2, 2005 letter to the Union, coupled with its acceptance of
specific arbitrators in subsequent cases. While the May 2, 2005 letter speaks
to the need to address the backlog of grievances and puts the Union on notice
that the Employer intended to deal with the backlog and thereby to bring all
cases up to date as soon as possible, it did not put the Union on notice that
henceforth the Employer would be insisting on strict adherence to the rule 27
and 28 time limits. There are many ways that a backlog of grievances might be
dealt with, including mediation or the adoption of an expedited arbitration
process. Most importantly for our purposes however, absent any reference to the
enforcement of time limits, the May 2, 2005 letter cannot be read as putting
the Union on notice that the Employer intended to strictly apply the rule 27
and 28 time limits going forward. Absent a clear statement of intent to this
effect, the naming of acceptable arbitrators in subsequent cases cannot be
construed, either alone or in conjunction with the May 2, 2005 letter, as
notice of the type required to bring the estoppel to an end.
Having regard to all of the foregoing,
I am compelled to find that the Employer is estopped from relying upon the
mandatory time limits under rules 27 and 28 of the collective agreement to have
these grievance declared inarbitrable by reason of being untimely. Having so
ruled, I do not have to decide if the consequences of non-compliance specified
in rule 27.9 apply to non-compliance under rule 28.
These grievances are to be put on for
a hearing on their merits. The arbitrator will contact the parties for the
purpose of arranging a conference call to discuss the order of proceeding,
including the Employer's contention that these grievances must be dealt with in
chronological order.
Dated
this 6th day of October 2006 in the City of Toronto.
Kevin
Burkett
Kevin Burkett