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HomeMy WebLinkAboutFranklin 14-07-07IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Union") - AND -- MUNICIPAL PROPERTY ASSESSMENT CORPORATION (the "Employer°) AND IN THE MATTER OF THE CLASSIFICATION GRIEVANCES OF RON FRANKLIN SOLE ARBITRATOR APPEARANCES For the Union For the Employer Robert D. Howe Tim Hannigan, Counsel Elba Bendo Ron Franklin Tom Agnew, Counsel Edward Broderick Natalie Blake A hearing in the above matter was held in Ajax, Ontario, on March 19 and May 15, 2014. A W A R D This awards pertains to preliminary matters raised by the Rmployer (also referred to in this award as 'IMPAC") regarding three grievances filed by Ron Franklin (the "Grievor"). The first grievance which was filed on January 15, 2042, claims that the Grievor, who at all material times held a Property Assessor 4 ("PA4") classification (the job title of which has changed over time) should he classified as a Case Management Analyst ("CMA"), which is a Property Assessor 5 ("PA511) classification, because he was allegedly performing the work of that higher classification. The remedy sought in that grievance was reclassification to that position, with full wage retroactivity and interest. That grievance was denied by MPAC through a letter dated January 16, 2002, which asserted that there had been no violation of the collective agreement. The only other document which the Employer is able to produce regarding that grievance is a written.request from the.Grievor to Greg Volkes (who was MPAC's Employee Relations Consultant at that time, but who has since retired) requesting a Stage Two meeting. All of the other pertinent documentation is no longer available. The second grievance was filed on October 7, 2003 Tt alleges that the Employer violated the collective agreement by assigning the Grievor.. work outside his core duties, and seeks remuneration for the Grievor at the PA5 pay rate 1 retroactively from April 15, 2002, including interest and .benefits. The only document which the Employer is able to produce regarding that grievance is a letter dated October 8, 2003, from a Union Staff Representative to Mr. Volkes, referring the grievance to arbitration and proposing that it be heard -by a single arbitrator selected from a list of twelve arbitrators. One of the names included in that list is Arbitrator William Kaplan. The third grievance, which was filed on June 6, 2006, alleges that MPAC violated the collective agreement by .improperly classifying the Grievor as a Valuation Review Specialist. The relief sought in that grievance is that the Grievor be reclassified as a Senior Valuation Analyst and that he be retroactively paid the PAS rate of pay applicable to that classification, with benefits and interest, During the course.of argument, union counsel indicated that the remedy the Union is seeking on behalf of the Grievor is retroactive pay for the period. from 2002 to 2008, and that it is not seeking to have him reclassified to a PA5 classification on a go forward basis. Although not all of the grievances referred to in this award were filed under the same collective agreement (as collective agreements expired and were sequentially replaced by new collective agreements), the collective agreement that was in force at any given time will be referred to in this award as the "Agreement", for ease of exposition. After the Employer announced a reorganization that was likely to have an impact on a number of employees in the bargaining unit, the parties entered into a Protocol on August 16, 2001, to govern the implementation of the reorganization and ameliorate its impact on employees. The Protocol included an agreement that the Employer would create a new PA4 classification named Customer Service Representative. The Grievor was awarded that new PA4 classification at or around that. time. {The name of that position has also changed over time, but.it is, in effect, the position that the Grievor currently occupies.} By letter dated.December 19, 2001, the Grievor applied for a CMA position. The Employer has located and produced a document dated March 18, 2002, which lists the results of that job competition and shoes a score of 32 (out of a total of 45) for the Grievor, who is number 2.8 on that list of 37 employees and who was not successful in that job competition. However, the Employer does not have anyone who can be called to testify about that document. It is the Employer's contention that the first two of those three grievances were dealt with by Arbitrator Kaplan in Municipal Property Assessment Corporation and OPSLU (Multiple Grievances Relating to Senior Valuation Analyst (PA5) Job Competitions, [20041 O.L.A.A. No 259, and in his unreported award dated May 17, 2004, regarding the implementation of the first award, However, due to the passage of time, the Employer is unable to produce copies of the grievances that were before Arbitrator Kaplan in those proceedings. 3 It is common ground between the parties that if. the Grievor were called to testify in the instant case, it would be his evidence that. Arbitrator Kaplan was dealing with a separate job competition grievance that he filed seeking a PA5 position. (The Employer accepted that this would be his testimony, and dial not require him to testify.) However, neither the Union nor the Grievor has been able to produce a copy of that grievance. Thus, Employer counsel submitted that it should be found that the grievances before Arbitrator Kaplan included those first two grievances. He also contended that it would be inappropriate to award any damages to the Grievor for the period preceding 2004 as the Grievor's entitlement to such damages was addressed and denied by Arbitrator Kaplan in his unreported award dated May 17, 2004. He further contended that no damages should be awarded to the Grievor for the period from 2004 to 2008 because the Kaplan award gave. him an opportunity to earn the PA5 rate during that period but the Grievor declined that opportunity, thereby failing to mitigate his losses. Thus, he submitted that the Kaplan awards should be a complete answer to the remedy claimed by the Union in the instant case. As an alternative argument, counsel for the Employer submitted that even if it could be shown that Arbitrator Kaplan was dealing with a separate grievance, his awards deal with the substance of the earlier grievances, which 2mployer counsel contended to be whether the Grievor should be awarded. a CMA PA5 position. He also submitted that if the Grievor was 4 seeking a PAS position through a job competition grievance, it would be surprising if it was not brought up before Arbitrator Kaplan that the Griever felt that he had been doing a PAS job for several years. He further submitted if this was not brought up before Arbitrator Kaplan., the Union had an opportunity to raise it in those proceedings and should have done so. The relevant portions of Arbitrator Kapl.an's first award react as follows: Introduction 1 In May 2001, MPAC announced a major reorganization. As part of this reorganization, a number of new bargaining unit positions were filled through a competitive process, including the position of Senior Valuation Analyst (PAS). Almost 1000 employees applied for this position, and 556 of the applications proceeded to an interview before a job competition panel. Interviews were conducted across the province in January and February of 2002. By early March 70 job offers were made and accepted. A.large .number of grievances were subsequently .filed. Given the volume of grievances in this job competition and in several others occurring at the same time, the parties negotiated a protocol for their expeditious and fair resolution in a process of mediation/arbitration. 2 The PAS job competition grievances proceeded first at a hearing held in. Toronto on February 17, 2004, and March 8, 2004. The parties were advised, before any case was heard, that it was my view, having carefully considered the collective agreement, the submissions of the parties., and.the governing authorities, that the first step in the process was for the candidates to establish relative equality. It was also my view that absent exceptional circumstances, the assessment would be based on interview scores. Finally, it was indicated to the parties that remedy would be tailored as appropriate. 3 All potentially affected incumbents were notified of these proceedings and their right to attend and participate_ A large number of incumbents did attend and made representations. These representations, together- with the detailed written briefs of the 5 patties and the submissions made by union counsel, the grievors, and management counsel at the hearing, have all been given careful consideration. It should be noted that a number of these grievances were resolved, obviating any need for a hearing.... .ward 4 Except as follows, all grievances are dismissed. 2. Ron Pranklin awarded the next PAS position in case management. Conclusion 5 1 remain seized with respect to the implementation of this award. In his unreported award dated May 17, 2004, regarding the implementation ofthe first award, Arbitrator Kaplan wrote: Further to my award dated March 15, 2003 in which Mr. Ron Franklin was awarded the next PAS position in case management, it is my understanding that Mr. Franklin has been offered such a position in Toronto or Richmond Hill. [+sir. Franklin has five days from the date of this award to accept either offer, such offers being in complete compliance with the earlier award. The Union requested damages, but I find, in all of the circumstances, that the appropriate remedy is the awarding of the position with no damages, Should Mr. Franklin decline these offers of the position, the employer will be deemed to have complied with my award. The Grievor did decline both of those offered positions because he was working in the Employer's Mississauga office, and did not wish to relocate to Toronto or Richmond Hill by accepting a position in either of those offices. in a .letter dated July 8, 2004 to the persons who served as counsel in those proceedings, Arbitrator Kaplan wrote, in part, as follows:. 2 As you know, a large number of job competition grievances have now proceeded to a process of expedited mediation/arbitration as agreed to .by the parties. On several occasions during this process, the union requested that I provide reasons for the decisions and orders issued. In particular, the union requested that I provide reasons for my decision, absent exceptional circumstances, that the. starting point .for arbitral review was the scores awarded to the candidates. Under the expedited mediation/arbitration process agreed to by the parties, I am not required to provide reasons. Moreover, it was not appropriate in the particular circumstances of this case that, reasons be provided.... Although the third grievance postdates the Kaplan awards, Employer counsel relies upon the doctrines of res judicata, issue estoppel, and abuse of process in support of his contention that neither it nor the earlier two grievances should be permitted to proceed in light of those awards. It is the Union's position that the Kaplan awards do not preclude any of the grievances from being arbitrated. In support of that position, Union counsel submitted that all three of those grievances clearly deal with the issue of classification, by asserting that the Grievor is performing the work of a higher classification and that he should.be compensated accordingly. He contrasted that issue with what he characterised as the fundamentally different job competition issue of relative equality addressed by Arbitrator Kaplan in the context of grievances pertaining to the job competition process under which employees apply for posted jobs and are interviewed in respect of them. He further submitted that the expedited process to which the parties agreed for the purpose of dealing with huge volumes of job competition grievances would have been bogged down if 7 collateral issues such as work being performed and classification had been introduced into that process. it was also his.contention that the doctrines of res judicata, issue estoppel, and abuse of process, are not applicable in the circumstances of this case, because the issues addressed by Arbitrator Kaplan in the context of the.job competition grievances that were before him are fundamentally different from the issues raised by the three classification grievances that are before me in these proceedings. MPAC also contends that all three grievances should be dismissed on the basis that the Union more recently abandoned or withdrew a grievance dealing with substantially the same issues. That grievance, which was filed on July 17, 2009,.alleges that the Employer -violated the Agreement by not awarding the Grievor the position of Senior Case Management Analyst (PAS), as posted in competition MPAC--054-09, and seeks to have than position awarded to him effective July 7, 2009 (with interest, remuzaeration, and benefits) . It wa.s subsequently referred to arbitration before Arbitrator Susan Tacon. She commenced hearing it on April 17, 2012, and met with the parties again on September 13, 2012, at which time it was resolved (along with another grievance) through Minutes of Settlement ("MOS") which provide, in part, as follows: 1. The Employer will pay the Grievor the lump sura amount of X10,320.00 less all statutory deductions within 30 days. 2. In exchange for the consideration in paragraph one, the parties agree as follows: (a) The Grievor{s vacation -pay grievance 1-'1 (Grievance No.: 2009-0546-0032) is fully resolved and settled and will be withdrawn. (b) The Grievor will not be permitted to apply to a job competition for Senior Case Management Analyst (PA5) position for a three (3) year period from the date this Settlement is signed. This prohibition applies to the Senior Case Management Analyst position whether or not the name .of that position is changed in the next three years. 7. This Settlement is without prejudice or precedent to any other grievance involving any other gxzevor. and shall not be referred to or relied upon in any other proceeding save and except for the purpose of enforcing the terms contained herein. 8_ The parties agree that Arbitrator Tacon will remain seized to deal with any issues arising with respect to the implementation of this Settlement. Employer counsol contends that seeking to arbitrate the three grievances (dated January 15, 2002; October 7, 2003; and June 6, 2006) is an attempt to get around the intent of that settlement, which is to have labour relations peace for a number of years. He also contends that l have jurisdiction (under paragraph 7 of the MOS) to enforce the MOs. He further contends, in the alternative, that even if z do not have jurisdictionn to enforce the MOS, r can rule that a settlement was reached which resulted in the 2009 grievance being resolved, and that the resolution of that grievanceprecludes similar grievances, such as the aforementioned three grievances, from being pursued. Union counsel submitted that it would be inappropriate for me to consider the MOS at all, by virtue of paragraph 7 thereof which precludes it from being referred N to or relied upon in any other proceeding save and except for the purpose of enforcing its terms. As an alternative submission, he also contended that the MOS is a settlement involving a job competition case (and a vacation pay case), not a classification case. He .further submitted that it is an agreement to resolve only two specific grievances, noting that the parties could have negotiated a settlement of all outstanding grievances but did not do so. MPAC also relies upon the equitable doctrine of laches in support of its contention that the Union's delay in pursuing the three grievances to arbitration, and the resulting prejudice to the Employer, should bar thea from being heard. Tn support of that position, Employer counsel noted that the first grievance is twelve years old, the second grievance is also more than a decade old, and the third grievance is eight years old. He further submitted that if the grievances were to proceed to be heard on the merits, MPAC. would suffer evidentiary prejudice as well as prejudice resulting from collective agreement consequences, such as bumping that might be affected by an award on the merits, the potential financial prejudice of being required to compensate the Grievor for a lengthy period of time, and the prejudice of having entered into a settlement of a subsequent grievance only to be dragged back before an arbitrator to litigate the same issue. The cases relied upon by Employer counsel in support of his laches argument are Re Kitchener (City) and 'C. U. p. h . , 10 Local 791. (.Kaufman) (1998) , 71 L.A.C. (4th) 223; 51 C.L.A..S. 266 (Newman); and Re Hamilton health Sciences and Q.N.A. (2010), 292 L.A.C. (4th) 332, 101 C.L.A.S. 81 (Slotnick) . He also referred to the following provisions of the Agreement: ARTICLE 1 - PURPOSE 1.01. The purpose of this Agreement is to establish and maintain working conditions; hours of work and wages with respect to employees covered by this Agreement and to provide for a prompt and orderly Method of settling complaints or grievances which might arise hereunder. ARTICLE 10 - GRIEVANCE AND ARBITRATION PROCEDURE 10.02 It is the mutual desire of the parties hereto that complaints of employees shall be considered as quickly as possible.... ARBITRATION 10.13 Failing settlement under the foregoing procedure of any grievance between the parties arising from the interpretation; application or alleged violation of this Agreement, including any question as to whether a matter is arbitrable, such grievance may be submitted to arbitration as hereinafter provided. if no written request for arbitration is received within twenty (20) days after the decision under Stage Two is given, the grievance shall he deemed to have been abandoned. 10.23 The parties. acknowledge that the time limits set out in both the grievance and arbitration procedures must be strictly complied with except by written agreement to extend them and failure to so comply shall result in the grievance being deemed to have been. abandoned. Although Employer counsel acknowledged that the three grievances were each referred to arbitration within the twenty 11 day time limit specified in Article 10.13, and further acknowledged that the Agreement does not specify a time limit within which a Hoard of Arbitration must be constituted, or within which the parties must agree to a sole arbitrator in lieu of a Board of Arbitration, he submitted that this does not matter because the doctrine of laches empowers an arbitrator to dismiss a grievance on the basis of delay even where a collective agreement does not provide any such time limits. He also submitted the lengthy delay in the instant case is inconsistent with Article 1.01 and with the expedition contemplated by the parties as evidenced by the other above -quoted provisions of the Agreement. In responding to Employer counsel's submissions regarding laches, Union counsel submitted that it a discretionary doctrine which an arbitrator is not obligated.to apply, and invited me to exercise my.discretion not to apply it in the circumstances of this case. He noted that this is not a case about a single event that occurred in 2002, but rather is about the Gxievox being assigned to.perform the work of a higher classification over an extended period of time, which he suggested is akin to a continuing grievance. He argued that it would be easy for the Employer to know what classifications it had in what offices over a period of time, and to know that certain work had to be performed. He also submitted that MPAC is in the documentation business and is very skilled in maintaining records. In support of that contention, he noted that the Employer has been able to locate 12 the letter (dated December 19, 2001) by which the Grievor applied for the position of Case Management Analyst, and the aforementioned document dated March 1.8, 2002, which lists the results of that job competition. He further submitted that any prejudice to the Employer is purely speculative or hypothetical at this point, and that if there is any unfairness to MPAC when the merits are being dealt with, it can be dealt with at that time. He also noted that the parties are free to make submissions about; how far back remedial relief should go. In support of his submissions regarding laches, Union counsel referred to Re Banking Authority of Toronto and Canadian Union of Public Employees, Local 43 (1974), 5 L.A.C. (2d) 1.50, (1974] O.L.A.A. No. 18 (Adell) ; Essar Steel AISrorna -Tnc. and USDT. Local. Union 225.E (Evans) (2012), 229 L.A_C. (4th) 203, [20121 O.L.A.A. No. 6541 (Parmar); and Re British Columbia Iristitoto of Technology and British Columbia Government Employees, Union (1986) , 27 L.A.C. (3d) 56, [1986] B.C.C.A.A.A. No. 76, 4 C.L.A.S 46 (Kelleher). Union counsel also submitted that it is important to consider Municipal Property Assessment Corp. v. Ontario Public Service Employees Union (.Reclassificatioxx G-rievances), [2011) O.L.A.A. No. 16, 105 C.L.A.S. 66 (MacDowell), as context. In that award, Arbitrator MacDowell wrote, in part, as follows. 1. This decision deals with two different disputes that have arisen between the parties. (1) "the reclassification dis ute" and (2.) "the or azlizational realignment dispute". Both disputes generated a number of grievances; and, failing resolution, both sets of grievances made their way to arbitration before me. 13 3. The "reclassification dispute" was an amalgam of more than 120 individual grievances, involving roughly 220 different employees. in each case, the grieving employee contended either (a) s/he had been routinely doing the work of a higher classification and should therefore be "reclassified" into that higher -rated position; or, alternatively, (b) that from time to time s/he did the work of the higher -rated classification and should therefore receive the higher rate for the Period(s) of time that s/he performed those job functions. Accordingly, each grievance required a detailed examination of the work pattern of the employee, over a number of years, in order to see whether one or of the other of these claims could be substantiated on the evidence. 5. A hearing on the "reclassification dispute" began in early 2009, and continued thereafter on a number of hearing days scheduled on the agreement of the parties. The purpose of those hearings was to receive the parties' evidence concerning one of the Grievors. whom the union believed. had a particularly compelling argument; -moreover, it was hoped that his case might set the stage for a more expeditious resolution of the many individual grievances that were to follow. On the other hand, the number of grievances requiring individual consideration meant that it would take many months (probably years) to complete the case. 10. These matters came on for hearing on January 11, 2011; and given the nature of the two disputes, the parties invoked the dispute resolution mechanism found in section 48 (14)of the Labour Relations Act.... 14. ... I made recommendations to the parties on a "global settlement", which would fully and finally resolve all the matters in dispute between them. 15. It seemed to me to be quite unfortunate that the "reclassification rievances" might percolate along, for years, without delivering any tangible results for the vast majority of the employees affected; while the "organizational realignment dispute", while simpler in concept, had an "all or nothing", "win/lose" quality about it, that was unlikely to enhance the parties, 14 relationship regardless of its disposition_ In the circumstances (and have considered the "practicalities" of the situation, the parties' representations, and the ostensible strength of their positions) I recommended a single "global resolution" for the two disputes which, in the result, the parties accepted. 16. Having regard to the foregoing, I direct MPAC to pay the sum of $475,000, (less deductions required by law), in full and final resolution of all issues and grievances in connection with these two disputes. Union counsel submitted that in the context of parties which have such a high volume of grievances, it is understandable that not every grievance is processed immediately, as the resources required to arbitrate all of those grievances immediately would be almost unimaginable. He submitted that the proceedings before Arbitrator MacDowell show that issues similar to those raised by the three grievances. were being dealt with by the parties as recently as 2011 in the context of grievances going back several years, and that when these three grievances are considered in that context the additional "few more. years" of delay in arbitrating them is not a significant delay. In replying to Union counsel's submission that MPAC is in the documentation business and is very spilled in maintaining records, counsel for the Employer noted that the three grievances are not about some key documents which would have been archived, but rather deal with the day to day work activities of the Grievor between 2002 and 2008, which would not have been documented. He noted that cases of this type are by their very nature fact specific_ Thus, he submitted 15 that the Employer would be very prejudiced by having to call witnesses to testify about what the Grievor was doing on a day--to-day basis in a six-year period going back to 2002. He argued that those witnesses may no longer be available and that, even if they are, it is unlikely they would have a memory of the minutiae of what the Grievor was doing on a day--to-day basis six to twelve years ago. In replying to Union counsels contention that the prejudice asserted by MPAC is hypothetical, Employer counsel. submitted that all of the cases which apply laches to dismiss grievances without hearing them by definition deal with hypothetical prejudice. He further submitted that there is very good reason to assume that there would be prejudice in the instant case; and that this in sufficient to have the three grievances dismissed on the basis of laches. Employer counsel also contended during the course of his reply argument that the Employer was not aware of the three grievances when.it entered into the MOS on September 13, 2012, and would not have agreed to that settlement if it had been aware that. the Union would be ,seeking to arbitrate them. He further submitted that as a result of the Union not bringing the three grievances forward, MPAC also missed the earlier opportunity to settle them as part of the X475,000 settlement mediated by Arbitrator MacDowell in 2011. It was also his contention that allowing these grievances to proceed would be damaging to the parties' relationship, as it would discourage settlements by making the parties distz:ustftil of 16 each other and much more leery of entering into settlements for fear that something from the past would come back to haunt them. He submitted that the Unionhas provided no explanation for its delay other than Union counsel's reference to the 120 grievances that were being dealt with by Arbitrator MacDowell, which he submitted does not explain why the Union failed to process these three grievances. He noted that nothing in the MacDowell award indicates that the parties have a practice of allowing grievances to languish for years, as neither that award nor anything else before me in these proceedings indicates when those 120 grievances were filed. Arbitrators have a discretion to decline to hear a grievance on the basis of excessive delay, in accordance with the equitable doctrine of laches, even where the applicable collective agreement does not provide any time limits for the filing or processing of grievances. in attempting to achieve a balance between the interest of fairly resolving the merits of disputes and the interests of expedition and finality, arbitrators generally consider the length of the delay, any explanation of the reason{s} for the delay, and the prejudicial effect of the delay on the other party. To avoid application of the doctrine of laches, the responsible party must provide a reasonable explanation for the delay. it is also necessary to consider whether the delay has caused prejudice to the objecting party, (See Brown &: Beatty, Canadian Labour Arbitration, at paragraphs 2:3210, 2:3212, and 2:3214; Mitchnick and Etherington, Labour Arbitration in 17 Canada, at paragraph 2.6.4.; Re Hamilton Health Sciences and O.N.A., supra; and Essar Steel Algoma Inc. and USW. Local Union 2251 (Evano) , supra, at. paragraph 17.) . In Re Kitchener (City) and C. U. P . E. , Local 793. (Kaufman), supra, Arbitrator Newman applied the discretionary equitable doctrine of Laches to dismiss a grievance (protesting the award of a posted job to another applicant with less seniority than the grievox) on the basis of undue delay where there had been a delay of seventeen months between the time when the Employer responded to the Union's referral of the grievance to arbitration (by rejecting the three individuals suggested by the Union as potential sole arbitrators and suggesting the names of three different arbitrators for the Union's consideration) and the time when the Employer was notified by the Office of Arbitration that the Union was pursuing the grievance through the expedited arbitration procedure provided by the Ontario Labour Relations Act. In that case, the Union did not provide any explanation for the delay. moreover, the Arbitrator found (at page 229, paragraph 17) that there was "also no doubt that the lengthy delay in proceeding to arbitration has caused prejudice both to the Employer as well as to the incumbent and all other employees affected inthe humping chain". In the .earlier case of Re British Columbia Xnstitute of Technology and British Columbia Government Employees' Union, ,supra, Arbitrator Kelleher declined to exercise his discretion to dismiss a grievance on the basis of a 18 seventeen --month delay in bringing it to arbitration. Although he was of the view that. the Union "should have brought the matter to arbitration much more quickly", he found that the circumstances did not warrant denying the grievor the right to have his "bad faith" grievance adjudicated. In concluding that the circumstances did not amount to prejudice such that he should refuse to entertain the grievance, he noted that there was no evidence that any of the employer's witnesses were unavailable or that any document that the employer needed to defend the grievance was lost. Although (in paragraph 38 of his award) he recognized "the fact that the passage of time itself makes it more difficult for a party to present its case" and that the "recollections of witnesses become more clouded over time", he concluded that this was "not a sufficient reason in itself to refuse to hear the matter". In Essar Steel Algoma .Inc. and USW. Local Union 2252 (Evans), supra, there was a six-year delay between the referral of the grievance to arbitration and the first day of hearing. in denying the employer's motion to dismiss the grievance on the basis of laches, Arbitrator Parmar wrote, in part, as follows; [17] There is little.dispute about the applicable law. For that reason, I will set it out briefly focusing on the most relevant factors. In order to access the equitable remedy of dismissal due to delay, the evidence must demonstrate delay without a reasonable explanation and prejudice resulting from that delay. [18] There is no dispute that a significant amount of time has passed since the referral to arbitration. Furthermore, the Union has not challenged the Employer's assertion that there is prejudice resulting from that delay, and in fact, the Union. expressly WJ stated that it too is prejudiced by the delay. [191 There is a dispute about whether there is a reasonable explanation for the delay. [201 The parties have for many years followed a particular practice in setting grievances for hearing, a practice which included having the Employer contact arbitrators with respect to available dates and advising the Union of those dates.... [251 ... The parties collectively have created a culture permitting grievances to languish for years, despite the presence of a collective agreement provision mandating expeditious resolution of disputes. While the Employer submitted that silence doesn't necessarily amount to waiver, in particular circumstances silence may well have that effect. Here, the parties took years to address grievances without any issue about the delay. As such, it is not reasonable to conclude that the Union should have known that three years was all right but five or six years was not. It is simply not equitable for one party to state, after the fact, "actually we're holding you to a different standard". Not .retroactively. [261 It could, however, be done prospectively. T note this in light of the Employer's query whether allowing this grievance to proceed means outstanding grievances can be left to languish indefinitely. While the Employer must live with the past delay based on its historical participation in and acceptance of the past delay of the parties, that does not mean the Employer has no means to prevent future delays. TL is open to the Employer to conduct itself differently and to act in a manner whereby the Union can no longer reasonably conclude that any future delay will be accepted.as normal business.... {271 The present case, however, must be determined on the facts that existed up until this hearing commenced. 1 find that the Union acted in accordance with the parties' joint practice in respect of its dealings with the Evans' grievance. I find the practice was that grievances would be left sitting for years anti that was accepted by both parties. I find that is a sufficient explanation for the amount of timebetween the referral to arbitration and the commencement of this hearing, It is sufficient in the sense that it does not warrant the granting of an equitable remedy to a party who participated in this practice. 20 In the instant case, there has clearly been excessive delay on the part of the Union. The grievances were filed on January 15, 2002; October 7, 2003; and June 6, 2006; respectively. Although the grievances were each referred to arbitration within the twenty day time limit specified in Article 10.13 Of the Agreement, the Union did not seek to have them arbitrated until 2013, when r, was advised (by letter dated May 31, 2013.) that the parties had agreed to invite me to serve as sole arbitrator. (The grievances were subsequently scheduled far hearing on October 16, 2013. That date was devoted to settlement discussions which unfortunately were unsuccessful. The hearing continued on March 19, 2014, and was concluded on May 15, 2014.) Moreover, the Union has not provided a reasonable explanation for that extreme delay. Although as submitted by Union counsel, in the context of Parties which have such a high volume of grievances, it may well be understandable that not every grievance is arbitrated immediately, neither that high volume of grievances nor any of the other context provided by Arbitrator MacDowell,s award provides a reasonable explanation of why the Union delayed eleven years, nine and a half years, and seven years respectively in seeking to have the.three grievances arbitrated. That delay has already prejudiced the Employer and will undoubtedly cause the Employer further prejudice if the grievances are allowed to proceed. As indicated above, due to the passage of time neither the Employer nor the Union has 21 been able to produce the grievances that were before Arbitrator Kaplan in the proceedings before him which took place a decade ago. Although MPAC accepted that if the Grievor were called to testify in the instant case, it would be his evidence that Arbitrator Kaplan was dealing with a separate job competition grievance that he filed seeking a PA5 position, neither the Union nor the Griever was able to produce a copy of that grievance, giving rise to uncertainty and speculation regarding what grievance or grievances was or were actually before Arbitrator Kaplan in respect of the Grievor, and regarding what claim for damages on behalf of the Grievor was denied by Arbitrator Kaplan in his unreported implementation award dated May 17, 2004_ Thus, the Union's delay has already prejudiced the Employer in the presentation of its case. The Union's delay in seeking to have the three grievances arbitrated has further prejudiced the Employer by depriving it of the opportunity to have them settled as either part of the settlement mediated by Arbitrator MacDowell in 2011, or the MOS entered into on September 13, 2012. 1t may reasonably be inferred that if the Employer had been aware that the Union considered the three grievances to still be alive and arbitrable, it would not have entered into those settlements without attempting to include their resolution in one of them. However, nothing in these proceedings provides any indication that the Union did anything prior to 2013 to bring that counter -intuitive information to the Employer's 22 attention. It may also reasonably be presumed that if the grievances were permitted to proceed, the Employer would be further prejudiced by the lengthy time which has passed since the events to which they pertain occurred. As submitted by Employer counsel, this type of case is fact specifio and would require detailed evidence of the work which the Grievor was performing in the six-year period from 2802 to 2808. The Employer has only been able to produce very limited documentation regarding the grievances. Some of the witnesses whom the Employer would have to call to properly present its case may well also no longer be available. Moreover, even if they are available to testify, it is unlikely that they would have a reliable recollection of the details of what the Grievor was doing on a day-to-day basis eight to twelve years ago. Having concluded that the Union has failed to provide a reasonable explanation for its excessive delay in seeking to have the three grievances arbitrated, and having further concluded that the Employer has been prejudiced by that delay and would be further prejudiced by it if the grievances were permitted to proceed, I find this to be an appropriate case in which to exercise my discretion to decline to hear them on the basis of excessive delay, in accordance with the equitable doctrine of laches. Since the Employer's objection to further proceeding with those grievances is being upheld on that basis, it is unnecessary to address any of the other bases on 23 f which the Employer seeks to preclude the grievances from proceeding. Fox the foregoing reasons, these proceedings are hereby terminated. DATED at Burlington, Ontario, this 7th of July, 2014. (j d Robert D. Howe Sole Arbitrator 24