SHP630

 

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