TIME LIMITS AWARD - PART 3

are otherwise notified by the Union, we will proceed to Arbitration on all of the above referenced matters.

It should also be noted that these matters are, in part, the subject of a complaint presently before the Canada Industrial Relations Board. To this extent, we will advise our Counsel of these latest developments. The Union reserves its rights to refer to these latest developments during the scheduled hearing before the CIRB.

It is in the foregoing context that the Union then advised the Company that it was forwarding the Coffey matter to arbitration, prompting the Company’s position that the Coffey grievance was untimely. In a letter dated December 6, 2004 Mr. Beatty replied to Company Vice President K. Creel, in part:
The Union, in addition to the above, will argue that the Company is “estopped” from changing the accepted practice (and interpretation of Article 84.4) with respect to the manner in which the Union progresses its grievances to Arbitration. The Union submits that any Company change to the accepted application of such progression will (and does) create a detrimental affect to the Union and its membership.

As noted above, the Coffey matter settled at the offices of the CROA & DR on January 11, 2005. The position of the Company is that it simply withdrew its objection to timeliness in that case, without prejudice. When Mr. Beatty wrote his letter of January 17, 2005 asserting a general understanding with respect to the waiver of article 84.4 of the collective agreement although the Company did not respond, it submits that it did not agree and that it continued, in any event, to decline grievances in violation of time limits under article 84.

The Company notes that the issue of progressing matters and requesting time limits is again reflected in correspondence from Mr. Beatty in 2006. On January 27, 2006 Mr. Beatty wrote to Mr. Krawec concerning the matter of a substantial list of grievances settled at a joint conference in London, Ontario on December 10, 2005. That letter reads as follows:
Please find attached a voluminous list of grievances which were settled at the recent Joint Conference on December 10th, in London. As you are aware the decision of our Office in these matters may be individually appealed through an internal appeal process contained within the UTU Constitution. Should such an appeal be successful our Office may be directed to proceed to Arbitration.

It is with the above in mind that we request that time limits be extended in these matters until all appeals (if initiated) have been exhausted. It is our view that such a request is reasonable and consistent with the Collective Agreement and in line with the intent and purpose of the Canada Labour Code.

If you are in agreement with the above (extension of time limits) please sing in the place provided and return to our Office.

With respect, should you disagree with our request, by notification or by not signing, we will proceed on the premise that such refusal is unreasonable. In this regard, should an appeal of our decision be successful we will deal with such matters (time limits) should they give rise to any future preliminary objection.

In closing, and with respect, we fully understand the difficult situation this creates for the Company (keeping files open). Although we are bound by the above noted process we stand by our decision in the resolution of these grievances. In the event an appeal is progressed we assure you that we will aggressively advocate our position of settlement as expressed to you at our Joint Conference.

By letter dated January 30, 2006 Mr. Creel responded to Mr. Beatty that the Company could not accept his suggestion stating, in part: “To agree to your request would render settlement discussions/conferences virtually useless and files would remain ‘open’ or result in every case going to arbitration in order to seek finality.”

The Company further notes that during the course of bargaining in the contract negotiations in the fall of 2006 the Union made a number of demands, including the proposal to “reaffirm there are no time limits at step 3 for progression”. The Company did not agree and the Union proceeded to exercise its right to strike. In the settlement following the strike no change was made to the language of article 84. Some time later, by way of letter dated April 25, 2008 addressed to General Chairperson Guy Ethier, Mr. Van Cauwenbergh proposed the general issue of time limits in article 84, upon which the parties were clearly not in agreement, could be addressed in an ad hoc arbitration. The Union agreed and this hearing ensued.

The Company argues that the facts simply do not support the Union’s assertion of an estoppel. With respect to the merits of the dispute, it argues that to allow the Union to indefinitely extend time limits by its own discretion, advancing matters to arbitration as it sees fit, is tantamount to placing a “Sword of Damocles” over the Employer’s head. It argues that the Company would be placed in a position of perpetual uncertainty and preparation, unable to administer its collective bargaining affairs in a rational way. Its representatives submit that the sequence of correspondence reviewed above confirms that at all times the Company held to the general position that the time limits in article 84 of the collective agreement are mandatory, indicating that it was prepared to extend the time limits by agreement, subject to such extensions being for a clear period to a date certain.

While the Company acknowledges that no answer was given to Mr. Beatty’s letter which asserted, in the settlement of the Coffey grievance, that a general agreement with respect to the waiver of article 84 time limits for filing to arbitration had been reached, it maintains that the Union was advised otherwise. As reflected in the evidence of Mr. Becker at the hearing, in the negotiations for the renewal of the collective agreement Mr. Becker was dealing with Mr. John Armstrong, then UTU Vice President and chief spokesperson at the bargaining table. He recalls that he expressed to Mr. Armstrong that the Company was not agreeing to a general waiver of the time limits for filing to arbitration found within article 84.4 of the collective agreement.

With respect to the mandatory nature of the time limits, the Company refers the Arbitrator to prior jurisprudence of the CROA including CROA 1233, 1056, 1356 and 1900. The Company also cites CROA 1929 for the proposition that a practice or understanding must be demonstrated on the evidence to be mutual, and “not a unilateral thought of only one party”.

I turn to consider the merits of this dispute. The Arbitrator must confess to considerable difficulty in understanding and accepting the argument of the Union that it has an unfettered discretion with respect to the timing during which any grievance may be filed to arbitration, notwithstanding the language of article 84.4 of the collective agreement. The Arbitrator readily appreciates that there may have been some great frustration experienced by the Union, particularly during that period of time during which it would appear many grievances simply were not responded to by the Company. Obviously, in that situation, absent any final determination in writing from the Vice President, as contemplated within article 84 of the collective agreement, the Union would be at liberty to advance the grievance to arbitration at such time as it might deem appropriate. Its right to do that, however, does not flow from any mutual understanding with respect to a waiver of the provisions of article 84. Rather, it flows from the express provisions of the Note to article 84.4 and the language of article 84.5.

How can the Arbitrator conclude that there was a mutual understanding between the parties with respect to the Union’s right to file grievances to arbitration at its discretion, in disregard of the 60 day time limit found in article 84.4, when there is not a jot of mutual written evidence to support the Union’s position? While it is obviously true that an estoppel can rest upon statements and verbal evidence, in the instant case the assertion of Mr. Beatty with respect to the purported understanding made at the time of the Coffey settlement is in fact denied by the evidence of Mr. Becker, evidence which the Arbitrator considers to be fairly and honestly given.

Reverting to first principles, it is important to recall that the Canada Labour Code, section 3(1), defines “collective agreement” as “…an agreement in writing entered into between an employer and a bargaining agent containing provisions respecting terms and conditions of employment and related matters”; the requirement of a written understanding is the most basic element of proof of a collective agreement. As a general rule, an agreement in writing is signed or executed by both parties who agree. It is not to be inferred from the self-serving written declaration of only one party, absent compelling and extraordinary evidence to support such an unusual conclusion.

The position which the Union argues in the case at hand is fraught with risk for all parties to collective bargaining. Suppose, for example, that a Company officer were to write the Union’s General Chairperson, asserting his personal, albeit erroneous, belief that the author of the letter and the General Chairperson had agreed that henceforth wages would be reduced by 10 percent and hours of work increased by 20 percent. For whatever reason, the Union does not reply to the letter sent by the manager. Can it seriously be argued that the failure to respond to such a self-serving letter would give rise to an estoppel so that the Company could effectively implement a reduction in wages and an increase in working hours? That is simply not the basis upon which collective bargaining and collective agreements are made and enforced in Canada. Parties to collective agreements are not to be placed at peril of having their collective agreement amended should they fail to respond to self-serving declarations or interpretations communicated to them by the other side. The doctrine of estoppel was never intended to extend so far.

What does the evidence in the instant case disclose? As reviewed above, notwithstanding the written position asserted by Mr. Beatty with respect to the settlement made in the Coffey grievance, there is an extensive line of correspondence from Company representatives stating and restating that in the Company’s view the provisions of time limits for filing to arbitration found in article 84.4 of the collective agreement are mandatory, and can be departed from only by an agreed extension of time limits. There is, with respect, no compelling evidence of any contrary mutual understanding between the parties or of any contrary representation by Mr. Becker.

What the Union asserts in the case at hand is a significant amendment of the collective agreement. Is a board of arbitration to conclude that so important an event, apparently made in the anteroom of the CROA in settlement of the Coffey dispute, was left to a verbal exchange and a handshake? Is a board of arbitration to conclude that the Company surrendered its ability to know with some precision the status of any given grievance, and in the ongoing scope of its arbitration liability, not to mention the managing of its ongoing files, for nothing in exchange and without reducing the understanding to writing? I think not. I also consider it implausible that the parties would have agreed to such an arrangement, and yet upon the renewal of their collective agreement in 2007 made no adjustment whatsoever in the mandatory time limits language of article 84.4 of the collective agreement. It is highly doubtful that the parties would have intended to effectively conceal their true agreement from the managers and Union officers responsible for its administration or the employees whose critical rights depend on the language of their collective agreement. I am satisfied that there was no understanding, no representation and that no estoppel can be said to operate. On that basis the position of the Union cannot be sustained.

What of the alternative position of the Union? Section 60(1.1) of the Canada Labour Code, Part 1 grants to an arbitrator the discretion to extend the time limits in relation to the grievance and arbitration procedure established within a collective agreement, “…if the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the other party would not be unduly prejudiced by the extension”.

In light of the statutory language reproduced above, the Arbitrator is not persuaded that it would be appropriate to grant a blanket time extension for a substantial number of grievances in relation to which there have been no representations or submissions made as to the issue of reasonableness or possible prejudice to the Company. It may well be that in light of the disputes between the parties over recent years, including the complaint to the CIRB, the two elements of section 60(1.1) of the Canada Labour Code, Part 1 may be made out, on a case to case basis. However, in the Arbitrator’s view the section is to be applied in specific reference to an individual grievance which is before the Arbitrator for a determination. In my view it is highly doubtful that an arbitrator could, in any event, give a blanket extension of time limits for a large number of grievances in relation to which the specific facts and equities are not known. Therefore, with respect to this branch of the Union’s argument, the Arbitrator simply declares that nothing in this Award derogates from the right of the Union to request that the Arbitrator exercise his discretion in relation to the extension of time limits if and when the individual grievances are advanced to hearing. Conversely, the rights of the Company to argue that the Arbitrator’s discretion should not be exercised remain intact, again to be argued on a case by case basis, having regard to the facts and equities of each specific grievance. Simply put, each grievance is entitled to be assessed on the standards of reasonableness and possible prejudice to the other party, as contemplated within the Code, on a case by case basis.

For all of the foregoing reasons, the grievance must be dismissed.

Dated at Ottawa this 29th day of July, 2008.

_______________________________
Michel G. Picher
Aribtrator