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HomeMy WebLinkAboutBooth 15-11-16 In the Matter of an Arbitration Between United Counties of Leeds & Grenville Mapleview Lodge (Hereinafter referred to as “the Employer”) And Ontario Public Service Employees Union – Local 494 (Hereinafter referred to as “the Union”) Regarding: Grievance of Delores Booth Sole Arbitrator: Felicity D. Briggs For the Employer: Steven J. Menard, Counsel For the Union: Jessica Greenwood, Counsel 1. Ms. Delores Booth, Personal Support Worker, filed a grievance on April 1, 2014 that alleged she was discharged without just cause. By way of remedy she requested full redress. 2. Prior to the first day of hearing the Employer made known to the Union that it intended to raise a number of preliminary objections. On the first day of hearing, after much discussion with the parties, it was agreed that the 1 Employer would proceed with its objection regarding a late referral to arbitration. It was asserted that the referral to arbitration was outside of the mandatory time limits of the Collective Agreement and therefore this Board is without jurisdiction to determine the matter. 3. Notwithstanding this agreement, the Employer reserved its right to argue the remaining preliminary objections in the event it is unsuccessful regarding the time limits issue. The Employer also specifically stated that it may need to call evidence regarding the further preliminary matters and reserved the right to do so. 4. The parties provided a number of agreed upon factual assertions. Additionally, a number of documents were admitted into evidence upon consent. This agreement negated the need to call viva voce evidence. 5. According to the documents, the Employer received complaints from employees in mid January of 2014 regarding the grievor. It investigated these complaints and held a meeting with the grievor on March 31, 2014 wherein the grievor was told that her employment was terminated. 6. She filed her grievance alleging unjust discharge the following day. 7. A step three grievance meeting was held on April 7, 2014 with the grievor, Ms. Rhonda Ferguson, Union Steward, Ms. Argue-Hobbs, Human Resource Manager and Andy Brown, Chief Administrative Officer in attendance. 8. On April 10, 2014, the grievor was informed verbally and in writing of a further allegation that the Employer had become aware of on April 8, 2013. Ms. Booth was given an opportunity to speak to this further allegation and she chose to do so via email. On April 10, 2014, the Employer atte mpted without success to hold a formal meeting to discuss the newly raised allegation further. 9. A ten-page letter was issued to the grievor on April 17, 2014 regarding her termination. The allegations - including the allegation raised after the grievor’s termination - and the Employer’s investigation results were set out in detail. 10. The Step 3 grievance reply dated April 23 2014, was sent via email by Ms. Argue-Hobbs on April 23 2014, and received by Ms. Ferguson on that same day. According to the agreement of the parties, the email was not sent to the grievor as a result of a request from the grievor that Ms. Ferguson act as her liaison with the Employer. Accordingly any communication was to go through Ms. Ferguson. 11. The Step 3 grievance reply denied the grievance. 2 12. The Union specifically agreed it does not take issue with the fact that the grievor did not get her own Step #3 Employer response. 13. On April 28, 2014, Ms. Ferguson wrote to Cathy Wright, Regional Office Secretary with OPSEU working in the Brockville office the following email: Good Morning Cathy Here is the Delores Booth file unjust termination. We have received the step four response and it was denied. We will be filing for arbitration. I will be forwarding two that are almost identical one for Delores and one for Ms. [X]. Thanks again Rhonda 14. On the same day, Ms. Ferguson sent the following email to Ms. Argue-Hobbs: Good morning Kristen, Please be aware that I have forwarded the Ms. [X] and Booth grievances to OPSEU for advancement to arbitration. Thank you in advance Rhonda 15. On April 28, the Union sent the following letter to Ms. Argue Hobbs via email: Grievance Number: 2014-0494-0003 Case Name: Grievance(s) of Ms. [X], Local 494 Employer: United Counties of Leeds & Grenville Mapleview Lodge Grievance Date: 2014-04-01 Issue/Article: Dismissal This is to advise that we are referring this dispute to arbitration pursuant to the provisions of the Collective Agreement. The Union is proposing that a single arbitrator be used in determining this matter. We are proposing one of the following arbitrators to hear this matter: (3 names) Please contact our Regional Grievance Officer, Andrew Reeson – OPSEU Brockville Regional Office, 333 California Ave. Unit 15, Box 37 Brockville, K6V 5T7, regarding the above grievance. Yours truly, Lynn Orzel (signed by C. Wright) 3 16. The grievor filed a second grievance dated April 29, 2014 alleging the Employer improperly “added additional disciplinary action” and harassment as a result of the subsequent allegation and investigation. 17. On May 6, 2014, the Employer wrote to the grievor – with a copy to Ms. Ferguson – regarding the second grievance that it received via email. The Employer took the position in that letter that the April 29, 2014 grievance was inarbitrable. This second grievance was ultimately withdrawn. 18. On May 9, 2014, the Union wrote the following letter to the Employer: Grievance Number: 2014-0494-0006 Case Name: Grievance(s) of Booth, Local 494 Employer: United Counties of Lees & Grenville – Mapleview Lodge Grievance Date: 2014-04-01 Issue/Article: Dismissal This is to advise that we are referring this dispute to arbitration pursuant to the provisions of the Collective Agreement. The Union is proposing that a single arbitrator be used in determining this matter. We are proposing one of the following arbitrators to hear this matter: (three names) Please contact our Regional Grievance Officer, Andrew Reeson – OPSEU Brockville Regional Office, 133 King St. W., Unit 204, Brockville, On, K6V 6Z1, regarding the above grievance. Yours truly, Lynn Orzel (actually signed by C. Wright) 19. The parties agreed that the letter set out at paragraph 15 is a template letter that has been utilized by the Union since at least 2009. The practice has been that it is issued over the signature of the Staff Representative or the Regional Secretary signing in lieu thereof. 20. The parties also agreed that in the past there was an instance wherein Ms. Ferguson sought and received written agreement for an extension of time limits for referral to arbitration. 21. Prior to the commencement of the preliminary arguments the Employer requested disclosure of documents regarding the Union’s procedure for processing grievances during the grievance and arbitration process. Some of the requested documents were provided upon consent while others were ordered produced by the Board. Some of the request was denied. 22. It was agreed that there was nothing about the grievance of Ms. Booth that would “take it outside” the Union’s regular process. 4 23. The OPSEU regional office opened the arbitration file under this process on May 9 of 2014 for this grievance and the letter set out at paragraph 15 above was generated on May 9, 2014, and sent the same day via email. 24. The Employer notified the Union on May 23, 2014 that it would raise a number of preliminary objections including “a breach of the time limits for referral to arbitration”. 25. The Board was provided seven examples of referral to arbitration letters sent by the Union to the Employer during the period May 24, 2011 to November 6, 2014 which are virtually identical to that set out in paragraph 15 in form and substance. All but one, which will be discussed later in this decision, complied with the time limits set out in the Collective Agreement. The only differences found in these seven examples were regarding the specifics of the grievance at issue and the three suggested arbitrator names. 26. The relevant provisions of the Collective Agreement are as follows: Article 7 – Grievance Procedure ….. 7.06 If a party fails to reply to a grievance within the time limits set out at any stage in the grievance procedure, the grievance may be submitted to the next stage of the grievance procedure. 7.07 Failing satisfactory settlement of the grievance at Step 3, the grievance may be submitted for arbitration as per Article 8. 7.08 Time limits referred to in the grievance and arbitration procedure may be extended by mutual agreement if specified in writing in advance. For the purposes of this Article working days are deemed to exclude Saturdays, Sundays and Statutory Holidays an d vacations. 7.10 Notwithstanding s. 48(16) of the Ontario Labour Relations Act, 1995, any complaint, grievance as outlined in Article 7, which is not made known within the time specified in this Agreement or which is not processed through to the next step of the grievance procedure or carried through to arbitration in the time specified in this Agreement, shall be deemed to be withdrawn. Article 8 – Arbitration 5 8.01 After the grievance procedure as set out in Article 7 has been exhausted, and before an Arbitrator or Board of Arbitration is contacted under this Article, either party may seek the services of a Grievance Mediation Officer to assist in resolving the parties’ differences. It is agreed that the services of a Grievance Mediation Officer will only be retained on the written consent of both parties. In the event a Grievance Mediation Officer is appointed, a referral to arbitration shall be delayed until after the Grievance Mediation officer has conducted a meeting of the parties. The parties shall jointly share the expense of the Grievance Mediation Officer. 8.02 Should either party wish to refer a grievance to arbitration, written request for arbitration shall be made by mail and/or fax to the other party within fourteen (14) calendar days of receipt of the last written disposition. Notwithstanding s. 48(16) of the Ontario Labour Relations Act, 1995, if no such written request for arbitration is received within the time limit it shall be deemed to have been abandoned. 8.03 The party requesting arbitration shall indicate in its written request, the name of its nominee to the Arbitration Board. 8.04 Within fourteen (14) calendar days thereafter, the other party shall answer by mail and/or fax by indicating the name and address of its nominee to the Arbitration Board. The two nominees shall then select an impartial chairperson, so that the Arbitration Board will be composed of one (1) person appointed by the Employer, one (1) person appointed by the Union and a third person to act a chairperson chosen by the other two members of the Board. 8.05 If either party fails to appoint a nominee within the time limits set out above, or if the two (2) nominees fail to agree upon a chairperson within fourteen (14) calendar days of their appointment or within such time as may be agreed upon, the Minister of Labour of the Province of Ontario may be asked to nominate a person to act as chairperson upon request of either party. 6 8.06 The decision of the majority shall be the decision of the Board. Where there is no majority decision, the decision of the chairperson shall be the decision of the Board. The decision of the Board of Arbitration shall be final and binding and enforceable on all parties, but in no event shall a Board of Arbitration have the power to change this Agreement or to alter, modify or amend any of its provisions, or to substitute any new provisions for any existing provisions nor to give any decision inconsistent with the terms and provisions of this Agreement. 8.07 Each party shall pay: a) the fees and expenses of its nominee to the Board of Arbitration: and b) one-half of the fees and expenses of the chairperson. 8.08 Single Arbitrator By mutual agreement, the parties may elect to have a single arbitrator hear the matter in dispute instead of a three person board. In such case, the party wishing to submit the issue to arbitration should indicate in its notice of intent to arbitrate, that it would like to have the matter heard by a single arbitrator. The recipient of the notice shall inform the other party within fourteen (14) days of the receipt of the notice if it is agreeable or not to the matter being heard by a single arbitrator. If so, the parties shall endeavour to select the single arbitrator. Failing agreement within thirty (30) days or such time as agreed by the parties, Clause 8.04 shall be followed. The single arbitrator shall be bound by all clauses of Article 8 in the same manner as a Board of Arbitration, with the necessary changes being made. 27. The parties agreed during the course of submissions that, notwithstanding the provisions of Article 8.02, it has been an accepted practice of the parties that notice of arbitration can be sent by way of email. EMPLOYER SUBMISSIONS 7 28. The Employer asserted that there can be no doubt that the letter sent via email referring the instant grievance to arbitration was beyond the time limits set out in the Collective Agreement. The grievance should have been referred no later than May 7th, 2015 yet the letter attached to the email was dated May 9th, 2014. 29. It was the Employer’s position that the language set out in Article 8 is clear as to how and when a grievance is to be referred to arbitration. In the alternative, if the Board finds that the language is ambiguous, the past practice of the parties can be used to resolve the ambiguity. When that evidence is taken into account it is apparent that it substantiates the Employer’s contention that the grievance was referred to arbitration outside of the mandatory time limits set out in the Collective Agreement. 30. Article 8.02 is clear that the time limits are mandatory and if not met the grievance is to be considered abandoned. The clause also states that notwithstanding provisions of the Labour Relations Act, arbitrators have no authority to extend the time limits. In any event, arbitral ability to extend time limits applies to time limits set out in the grievance procedure, not the arbitration procedure. 31. Mr. Menard, for the Employer, noted that Article 8.02 not only sets out the time limits for referring a matter to arbitration but also makes clear the penalty for the failure to do so in a timely fashion is abandonment of the grievance. This is not a case where there is an intermingling of the grievance and arbitration provisions that might cause some doubt as to whether this Board has the ability to extend the time limits. Article 7 deals with the grievance procedure and Article 8 provides for arbitration making very clear that the provisions are separate and distinct. In this regard, the Employer relied upon Re Leisure World Nursing Homes Ltd. & SEIU, Local 204 73 A.C.W.S. (3d) 854; Re Greater Essex County District School Board v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 552 [2012] S.C.C.A. No. 403l; St. Lawrence Lodge & CUPE, Local 2107 86 C.L.A.S. 229; and Re Region of Peel – Peel Manor & CUPE, Local 966 [2012] O.L.A.A. No. 323. 32. The Employer urged that the email sent by Ms. Ferguson on April 28, 2014 is not sufficient to meet the standard necessary to be considered a referral to arbitration. The email stated, “Please be aware that I have forwarded the Ms. X and Booth grievances to OPSEU for advancement to arbitration.” That communication - which differs considerably from every other notice of referral to arbitration sent by the Union to the Employer - states only that the 8 matter has been forwarded to OPSEU, not forwarded to arbitration. Further, it does not follow the format that the Union has used in its referral to arbitration letters since at least 2009. 33. Mr. Menard suggested that the email sent by Ms. Ferguson to the Union office on April 28, 2014 is also interesting and helpful in determining this matter. That email said that she “will be forwarding” the matter to OPSEU and “will be filing” for arbitration. An hour later Ms. Ferguson sent an email to the Employer saying only that Ms. Booth’s grievance had been forwarded to OPSEU for “advancement” for arbitration. It is quite clear that the email itself is not a referral to arbitration. Indeed, if it was a referral to arbitration there would have been no need to send the standard template letter dated May 9th, which stated “this is to advise that we are referring this matter to arbitration”. It is also worthy of note that the grievor’s file at the OPSEU regional office did not open until May 9th, 2014. If the April 28th email was a referral to arbitration the OPSEU file itself should have noted that the referral was made on that date. It did not. At best, the April 28th email is notice of a future intention to refer the grievance of Ms. Booth to arbitration. 34. The Employer asserted that Article 8.02 and Article 8.03 are interconnected and must be read together and provide how the notice will be sent, when it will be sent and what must be set out. The referral must be in writing, be sent within fourteen days and set out the name of the parties’ nominee. The only modification to naming a nominee is found at Article 8.08, which allows for a single arbitrator to chair the matter. 35. Mr. Menard reviewed the OPSEU processes as set out in its Procedural Manual for grievances and arbitration. It was noted that the documents reveal that the application for arbitration is to be made by the Regional Secretary in the regional office. It is also evident that the application is to be generated by the Union software out of the regional office. This is the process that has been followed in many earlier matters. Indeed, the Board was not provided with any other example of an instance of Ms. Ferguson sending a referral to arbitration. 36. It was noted by the Employer that the grievance of Ms. X - which was referred to Arbitration in a timely fashion and in the usual format - was also sent to the OPSEU regional office on April 28th. This variance is of import in the determination of this matter. 37. Finally, the Employer urged that the past practice of the parties substantiates the Employer’s view of the Collective Agreement and should be taken into 9 account in the event this Board finds an ambiguity in the Collective Agreement. UNION SUBMISSIONS 38. Ms. Greenwood, for the Union, did not dispute the Employer’s view that for this Board to find that it has no jurisdiction it must be convinced that the mandatory terms of the arbitration procedure found in the Collective Agreement have not been followed. However, it was her view that there can be no doubt that the Union – through the April 28, 2014 email of Ms. Ferguson – fulfilled this obligation within the time limits set out in the Collective Agreement. 39. In the alternative, if the Board disagrees with this view, the Employer is estopped from raising this objection because it has failed in the past to object to timeliness issues and it cannot now hold the Union to the strict provisions of the Collective Agreement. Further, the Employer has waived its right to rely on the time lines set out in Article 8. 40. The Union urged that the Collective Agreement is the most important document before this Board and the Union’s procedural manual relied upon by the Employer is of little or no assistance in determining this preliminary motion. As noted by the Employer, Article 8 contains the process for the parties to follow in the event a matter is to be arbitrated. However, it must be recognized that the process changes if one party proposes the use of a sole arbitrator as opposed to a full tripartite Board. In the event a tripartite Board is to be utilized, Article 8.02 mandates a nominee must be named and that information is to be provided in writing. Articles 8.03 to 8.07 contemplate the establishment of such a Board. However those steps do not apply to the grievance before this Board because the Union elected to proceed by way of sole arbitrator, which is provided for at Article 8.08. One important distinction found in Article 8.08 is the use of the term “should”, as opposed to “shall”, found in Article 8.02. Further, the use of the term “notice of intent” is of import. The April 28, 2014 email from Ms. Ferguson sent five days after the Step 3 response was issued gave the Employer written notice that the Union intended to submit the matter to arbitration. The fact that names of suggested arbitrators were not in that April 28, 2014 email is not determinative because Article 8.08 has no such requirement. What was the purpose of the April 28th email if not to put the Employer on notice that Ms. Booth’s grievance was to be arbitrated? There can be no doubt that the 10 Employer knew the Union’s intentions at the point it received this email. It was made clear that the Employer’s Step 3 response to the grievance was not acceptable and the matter would continue. 41. According to the Union arbitral jurisprudence has established that a referral to arbitration is to put the other party on notice that the matter continues to be in dispute and will be taken to arbitration. The April 28th email fulfills that purpose. 42. The Union urged that if a literal interpretation of the Collective Agreement goes against the intent of the parties then a non-literal view of the matter should be taken. It is evident that the intent of Article 8 is to put the other part on notice that a matter is being referred to arbitration and Ms. Ferguson’s April 28th email accomplished that purpose. 43. Ms. Greenwood noted that Ms. Ferguson’s email made clear that matter was not resolved and going to arbitration. The note did not say that she was waiting to hear from OPSEU as to whether it would agree to refer to grievance to arbitration. It simply made clear that she forwarded the matter to the Regional office for advancement to arbitration. It was sent to the Regional Office for the administrative steps to be taken as outlined in the OPSEU Procedural manual in evidence before this Board. 44. The Union contended that the Re Leisure World, supra line of cases are not of assistance to this Board because there is no question of time lines being met in these circumstances. The question for this Board is what constitutes a proper and sufficient referral to arbitration. There can be no doubt that the April 28, 2014 email constitutes a referral to arbitration. 45. The Union further urged that these parties have never held each other to strict adherence and for the Employer to do so now flies in the face of a long standing relationship. In this regard the Board was directed to a notice of referral to arbitrate that was sent to the Employer in March of 2012. The notice itself was sent twenty days after the Employer response and there was no objection to that late referral. It was conceded that in that case the Employer did object to the late filing of the grievance in the first instance, but not to the late referral to arbitration which would have been an absolute bar to arbitration. Accordingly, the Employer has waived its right to rely upon the terms of the Collective Agreement. 46. The Union responded to the Employer’s assertion that Ms. Ferguson does not have the authority to bind the Union and therefore her email should be seen as seeking approval from OPSEU for referral to arbitration. It was suggested by the Union that individual members have carriage rights and therefore 11 neither OPSEU staff nor local representative have the ability to decide whether to take a matter to arbitration – only the grievor has that right. It was also noted that there is no process in the procedure manual for determining whether a matter goes to arbitration and that is because there is no such process. If a member requests their grievance be forwarded it is. 47. It was contended by the Union that this Employer has frequently accepted the authority of Ms. Ferguson in the past – as evidenced by various agreements and it cannot now argue that she has no authority merely because it is to its advantage in this matter. 48. The Union said that while the form letter from the Regional Office setting out the names of three sole arbitrators is the usual form of communicating a referral to arbitrate, it is not the only method. The first sentence of standard letter says, “This is to advise that we are referring this dispute to arbitration….”. The inclusion of this line is not determinative. There is nothing in this letter that indicates some other form of communication could not have been sent earlier – such as the April 28th email. 49. Ms. Greenwood drew the Board’s attention to the Union office address on the letter of referral to arbitration for Ms. X and the lett er sent from the Regional Office in this case. There are two different addresses because the Union moved their office during that period. There were technical hiccoughs that occurred with such a move and that is the reason for the two different dates on these letters. 50. In responding to the Employer’s view that there has been a long established practice of the standard form letters that it relied upon the Union suggested that the Employer has shown no detriment it suffered for that reliance in this case. It did not suggest that it shredded its files or otherwise destroyed evidence that would be utilized during the hearing into this matter. If this is a case where the Board is going to determine the outcome based on past practice then this is certainly a case where relief must be granted. 51. The Union relied upon Re City of Toronto and CUPE Local 416 (2014), 117 C.L.A.S. 348 (Chauvin); Re N-J Sprivak Limited & Teamsters, Chauffeurs, Warehousemen and Helpers, Local 141 (2002), 103 L.A.C. (4th) 165 (Crljenica); Re Superior Propane Inc. and National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (January 20, 2003), unreported (Shime); Re Conestoga College and OPSEU, Local 237 (April 14, 2010) unreported (Knopf); and Re Manac Inc and CAW, Local 1285 (1999) 81 L.A.C. (4th) 375 (Rayner). 12 EMPLOYER REPLY 52. The Employer responded that the Union is asking this Board to effectively read Article 8.02 out of the Collective Agreement. It took issue with the Union’s view that there is a choice between Article 8.03 and Article 8.08. Article 8.02 and 8.03 apply in every instance where a matter is being referred to arbitration. Those provisions are mandatory. Either party may request a sole arbitrator be utilized in lieu of a Board of Arbitration. 53. The Employer refuted the Union’s view that the standard letter sent out by the OPSEU regional office over the signature of the Staff Representative is but one method of communicating a referral to arbitration. It was urged that it is the only method used and pointed out that there were no other examples provided by the Union in this matter of a referral letter other than the standard. If there is any ambiguity regarding the language of Article 8 it can be resolved on the basis of the parties’ long standing practice of the standard form letter. In this regard the Employer relied upon Re John Bertam & Sons. Co. and International Association of Machinists, Local 1740 (1967), 18 L.A.C. 362 (Weiler). 54. The Employer took a different view of the assistance to be found from the OPSEU procedural manual. It urged that the procedure set out therein is precisely what occurred in this instance and that is that the “local steward will advise the Regional Secretary that a grievance is to be submitted to arbitration” and “The Regional Secretary will produce and distribute correspondence related to an application for arbitration. This correspondence must be generated from Unionware.” The problem in this case is that the letter sent by the Regional Office was beyond the time limits found in Article 8. 55. Mr. Menard stated that despite assertions made from Union counsel in her submissions, there was no evidence regarding individual carriage rights before this Board. Further, the statement made regarding a move of the OPSEU Regional office is also reference to evidence that was not properly before this Board. 56. The Employer noted that some of the case law provided by the Union considered a purposive approach to be taken in matters such as this. However, it was contended that a purposive approach cannot be stretched so as to override the agreed upon language of the Collective Agreement. 57. The Employer disputed that it is estopped from relying on its rights under the Collective Agreement. In the grievance process referred to by the Union 13 where the referral to arbitration was late but not objected to there was no need because at every step of the grievance procedure the Employer raised an objection to the late initial filing of the grievance. Simply put, there was no need and, in any event, this one instance does not an estoppel make. Further, the evidence of instances whereby the parties specifically agreed to extend the time limits further underscores the fact that time limits are followed. The Employer relied upon Re Boundary School District No. 51 and BC Teachers’ Federation [1998], B.C.A.A.A. No. 358 (Gordon); and Re Vancouver Shipyards Co. and International Brotherhood of Electrical Workers’ Local 213 (1999), 80 L.A.C. (4th) 207 (McPhillips). 58. Finally the Employer asserted that it has not waived any rights to argue late referral in this matter. DECISION 59. The fundamental question for this Board to determine is whether the Union met its obligations under the provisions of the Collective Agreement when referring the grievance of Ms. Booth to arbitration. The Union took the position that an email sent by the Local Union Steward on April 28, 2014, was sufficient to meet its obligations and that this email was sent in a timely fashion. The Employer disputed this assertion and argued that this Board is without jurisdiction because the referral to arbitration did not occur until May 9, 2014 outside of the time limits set out in the Collective Agreement. 60. After consideration I am of the view that there is no ambiguity in the provisions found in Article 8 of the Collective Agreement. Article 8.02 provides that if either party wishes to refer a grievance to arbitration they must make that desire known in writing within fourteen calendars days of receipt of the last written disposition. It then makes clear that the Labour Relations Act cannot be relied upon to relieve missing the mandatory time limit of fourteen calendar days. 61. It is apparent from Article 8 that once a party determines it wishes to refer a matter to arbitration it must determine whether it wants to utilize a tripartite Board of Arbitration or use the services of a sole arbitrator. Once that decision has been made then the referring party would go to either Article 8.03 which makes clear that the name of one’s nominee must be made known or to Article 8.08 wherein it is stated: By mutual agreement, the parties may elect to have a single arbitrator hear the matter in dispute instead of a three person board. In such 14 case, the party wishing to submit the issue to arbitration should indicate in its notice of intent to arbitrate that it would like the matter to be heard by a single arbitrator. ….. (emphasis added) 62. There is nothing in either Article 8.03 or 8.08 that alters or alleviates the obligation to comply with the fourteen calendar day mandatory time limit for referring a matter to arbitration found in Article 8.02. 63. It goes without saying that matters such as these will turn on the language of the Collective Agreement at hand and while the jurisprudence was of some assistance, this Board is driven by the clear provisions found in Article 8. 64. The Union did not take issue with the Leisure World line of cases that has established that a Board of Arbitration has no jurisdiction to extend the mandatory time limits for referral to arbitration set out in a Collective Agreement. Rather, it was urged by the Union that the April 28, 2014 email from the Ms. Ferguson was a referral to arbitration. I must disagree. 65. The April 28th email did not say that the matter was being referred to arbitration. It said that the grievance was forwarded to OPSEU “for advancement to arbitration”. While I understand the Union’s view that this email – at the very least – set out the intention of the Union, it did not meet the obligations set out in Articles 8.02, 803 or 8.08. The April 28th email fell short because it did not name a nominee to a tripartite Board of Arbitration; nor did it state that it wanted to matter to be heard by a sole Arbitrator. In order to comply with the provisions of the Collective Agreement one or the other must have been provided to the Employer in writing within fourteen calendar days. Unfortunately, this was not done. 66. It was submitted that the use of “should” in Article 8.08 imports a lesser obligation than “shall” which can be found in Article 8.02. I think not. According to Black’s Law Dictionary, 5th Edition, “should” means: - the past tense of shall; ordinarily implying duty or obligation; although usually no more than an obligation of propriety or expediency, or a moral obligation, thereby distinguishing it from “ought”. - It is not normally synonymous with “may” and although often interchangeable with the word “would” it does not ordinarily express certainty as “will” sometimes does. 67. The April 28th email contemplated two grievances filed by two grievors that were forwarded to OSPEU for advancement to arbitration. It is worthy of note that the Union sent out a standard form letter (as set out above) to the Employer on the same day for the other grievance, that of Ms. X. If the Union 15 was of the view that the April 28th email was sufficient to satisfy the provisions of Article 8.02, why would it also send out its standard form for Ms. X on April 28, 2014 and later – on May 9, 2014 – for the grievor. 68. The Union urged that if a literal interpretation of the Collec tive Agreement goes against the intent of the parties then a non-literal view of the matter should be taken. While I understand that request, I am not convinced that a literal interpretation in this instance is contrary to the intent of the parties. Article 7.01 – the beginning of the grievance procedure makes clear that the parties want to resolve their disputes expeditiously. It states: Any dispute involving the application, interpretation, administration or alleged violation of this Agreement, including any question as to whether a matter is arbitrable, may be made the subject of a grievance and an earnest effort shall be made to settle such grievance as quickly as possible. 69. The rest of Article 7 sets out the various steps of the grievance procedure and clearly states time limits at each stage. Article 8 provides for the arbitration process and again includes time limits that expressly cannot be forgiven by an arbitrator. It seems to me that the intent of the parties regarding Article 8 is clear. They intended that at each stage there are time limits to be followed and failure to follow those time limits is determinative. 70. In the May 9, 2014 letter from the Union set out above addressed to Ms. Argue-Hobbs regarding this grievance stated, “This is to advise that we are referring this dispute to arbitration pursuant to the provisions of the Collective Agreement.” First I note that this is exactly the same language as found in every other letter sent by the Union to the Employer regarding reference of a grievance to arbitration. It is also true that the letter does not say something akin to “further to our earlier notice of referral to arbitration”, or “as you know from our April 28th email, the Union has referred this matter to arbitration”. One would think that if this had been a follow up to an earlier sent notice of referral to arbitration it would have been noted in some fashion. 71. I am buttressed in the view by reviewing the OPSEU Procedural Manual. In the Section entitled “Submitting a Grievance to Arbitration” the following is stated: The Staff Representative or Local Steward will advise the Regional Secretary that a grievance is to be submitted to arbitration. 16 The Regional Secretary will produce and distribute correspondence related to an application for arbitration. This correspondence must be generated from Unionware. ….. The “BPS” (broader public service) Selection of Arb Letter template to the Employer refers a grievance to arbitration and requests selection of arbitrator…… 72. The April 28th email from Ms. Ferguson does not comply with the Union’s own established and mandated process for referring a matter to arbitration. 73. Ms. Greenwood pointed out that there are two different Regional Office addresses on the correspondence for Ms. X and the grievor. She stated that there had been a move and technical problems. I accept the Employer’s view that the explanation provided may well be evidence that was not agreed or properly put before this Board. However, it is apparent on the face of the documents that there are two different offices and it seems obvious that there was a move. It may well be for this reason that the notice of intent to arbitrate fell through the cracks. While that is understandable it is not possible for this Board to set aside the mandatory time limits for referral to arbitration. 74. Turning now to the alternative submissions made by the Union I must find that the requisite elements of an estoppel or waiver were not established. In Re John Bertam, supra, Arbitrator Weiler stated, beginning at paragraph 10: ● This question comes within the larger issue of the scope to be given to “past practice” in the interpretation and application of collective agreements. In effect the company has argued that the events described above constituted a precedent wherein the agreement was applied according to the meaning contended for by the company. Thus the arbitration board is bound to adopt the same meaning here. In order to evaluate this argument we must consider the reasons for, or purposes of, the use of “past practice”. ● There are two main bases for their relevance. The earlier situation may involve a representation, by one party (express or tacit), which is relied upon by the other. The latter may change his position in such a way that it would not be harmed if the other were to change its position about the meaning of the agreement. The effect of such conduct is variously described as “promissory estoppel” or “waiver” and precludes repudiation of the representation if, and to the extent that, the party which has relied on it would suffer harm from steps 17 taken prior to repudiation. The fairness of such a general doctrine is obvious but, as we have seen earlier, it is not applicable here. First, the union made no representation to the effect that it agreed with the company’s decision and, on the contrary, explicitly rejected it. Second, the company’s position has not been changed to its detriment since any monetary award would relate only to Ms. Greenwood about whose claim the company was given timely notice. ● A second use of “past practice” is quite different and occurs even where there is no detrimental reliance. If a provision in an agreement, applied to a labour relations problem is ambiguous in its requirements, the arbitrator may utilize the conduct of the parties as an aid to clarifying the ambiguity. The theory requires that there be conduct of either one of the parties, as an aid to clarifying the ambiguity. The theory requires that there be conduct of either one of the parties, which explicitly involves the interpretation of the agreement according to one meaning, and that this conduct (and, inferentially, this interpretation) be acquiesced in by the other party. If these facts obtain, the arbitrator is justified in attributing this particular meaning to the ambiguous provision. The principal reason for this is that the best evidence of the meaning most consistent with the agreement is that mutually accepted by the parties. Such a doctrine, while useful, should be quite carefully employed. Indiscriminate recourse to past practice has been said to rigidify industrial relations at the plant level, or in the lower reaches of the grievance procedure. It does so by forcing higher management or union officials to prohibit (without their clearance) the settling of grievances in a sensible fashion, and a spirit of neutral accommodation, for fear of setting precedents which may plague either side in unforeseen ways in future arbitration decisions. A party should not be forced unnecessarily to run the risk of losing by its conduct its opportunity to have a neutral interpretation of the terms of the agreement which it bargained for. ● Hence it would seem preferable to place strict limitations on the use of past practice in our second sense of the term. I would suggest that there should be (1) no clear preponderance in favour of one meaning, stemming from the words and structure of the agreement as seen in their labour relations context; (2) conduct by one party which unambiguously is based on one meaning attributed to the relevant 18 provision; (3) acquiescence in the conduct which is either quite clearly expressed or which can be inferred from the continuance of the practice for a long period without objection; (4) evidence that members of the union or management hierarchy who have some real responsibility for the meaning of the agreement have acquiesced in the practice. 75. The Union pointed to one particular matter that was referred to arbitration in its contention that the Employer is estopped or has waived its rights. In that instance, according to the documents, the Union was out of time at the outset of the grievance procedure that the Employer objected to immediately and throughout the correspondence. Given that there was already an objection regarding time limits in that matter I cannot find that the Employer’s failure to raise the matter of time limits a second time regarding the arbitration referral to be a waiver or a practice of forgiving time limits. I would certainly not be prepared to find a practice upon which the Union could rely from that one instance. 76. For all of those reasons I am compelled to uphold the Employer’s preliminary objection. I find that I am without jurisdiction to determine the grievance. Dated In Picton this 16th day of November, 2015. Felicity D. Briggs