The URL can be used to link to this page

Home My WebLink About2009-1147.Johnston.11-08-02 Decision en.n EiJJpIo)II!es Grievance Settlement Board Commission de riglement des griefs des enpro,es de fa eor.onne Ni ~ Ontario smte mo 180 IJlndas 5t WesI TCJRJrm. 0BiD IofiG 1ZB Tel (4-16) 326-1388 Fax (4-16) 326-1396 Ibeau mo 180. rue IJlndas Ouest TCJRJrm (0BiD) M5G 1ZB TeL: (4-16) 326-1388 T~ : (4-16) 326-1396 GSB# 2009-1147 UNION# 2007-0640-0002 IN THE MATIER OF AN ARBITRATION Under THE CROWN EMPLOYEES COlLECTIVE BARGAINING ACT Before THE GRIEVANCE SETILEMENT BOARD BETWEEN Ontario Public Service Employees Union (Johnston) Unioo. -and- 1be Crown in Right of Ontario (Minis1Iy of Attorney General) Fmp10yer BEFORE Nunal Dissanayake Vice-Chair FOR THE UNION: Richard Blair Counsel Ryder Wright Blair & Holnrs LLP Banisters and Solicitors FOR THE EMPLOYER Felix Lan Counsel MinisIIy of Government Services lIEAKING J1Ble 20, 2011 -2- INTERIM DECISION [1] 1be Board is seized with the discharge grievance dated June 8, 2007 filed by Ms.. Denise Johnston. When 1he hearing COIIIIIleIlCed on December 10, 2009, an issue arose between 1he parties as to whe1her (J(" not 1he Bmrd had jurisdiction under s. 48(16) of the Labour Relations Act to extend 1he time limits for refemd of1he grievance to aIDimdiOll. In a decisioo. dated January 8, 2010, the BoanI concluded 1bat 1he language in 1he collective agreement between 1hese parties did not make refenaI to aIDimdion a part of 1he grievance procedme, and 1bat 1hct.efuu:, the Board was without jurisdiction to extend 1he time limits :fm- refemd to aIbitmtiOll. See, Re The Crown in RiPht of Ontario (Minis1ry of Attomev GeneIal) and OPSEU (Johnston) 2009-1147 (Dissanayake). [2] When the hearing wsumed on June 20, 2011, the employer moved for dismi~<;;al of the grievance 00. 1he grounds 1bat it had been filed outside 1he rnandatnry time limits for .efl:Llal to mbihation set out in the collective agreement. 1be unioo. took: the positioo. 1bat 1here had been no breach of any time limit in 1he collective agreement. This intaint decision deals with 1bat issue. [3] 1be material provisioo.s of 1he collective agreement are as follows: Grievance Procedure 22.1 It is 1he intent of this Agreement to adjust as quickly as possible any cmnplaints (J(" differences between the parties arising tim:n 1he iuhapu:hdion, application, administmtion (J(" alleged contravention of this agreement, inchJdine any question as to whe1her a matter is aIbitmb1e. STAGE ONE 22..2..1 It is the mnhlal desire of 1he parties 1hat complaints of employees be adjusted as quickly as possible and it is understood 1bat if an employee has a complaint, the employee shall meet, where pmcticaL and discuss it with 1he emp1oyee's immediate supervisor within thirty (30) days after 1he circumstances giving rise to the complaint have occurred to have come (J(" ooght reasonably to have come to the attentioo. of the employee in Older to give 1he immediate supervisor an opportunity of adjusting the cmnplaint. -3- 22..2.2 If any complaint or difference is not satisfactorily settled by the supervisor within seven (7) days of 1he discussion and/or meeting, it may be processed within an additioo.al ten (10) days in the following manner: STAGE IWO 22..3.1 If a complaint or difference is not resolved under Stage One, the employee may file a grievance, in writing, 1broogh the lJnion, with 1heir immediate supervisor who will in tom forward 1he grievance to 1heir senior human resources rquesentative for the minisUy or his 01" her tkippee. 22..3.2 1he senior human resources representative or his or her designee shaU hold a meeting with 1he employee within fifteen (15) days of 1he receipt of the grievance and shall give 1he grievor his 01" her decisioo. in writing within seven [7] days of 1he meeting with a copy to the Unioo. steward 22..4 If 1he grievor is not satisfied with 1he decision of 1he senior human resources rquesentative or his or her designee or if he 01" she does not receive 1he decisioo. within 1he specified time, the grievOl" may apply, 1broogh the Union, to 1he Grievance Settlement Board [GSB] fOl" a hearing of1he grievance within fifteen [15] days of1he date he or she received 1he decisioo. or within fifteen [15] days of the specified limit fOl" receiving the decision.. [4] 1be relevant facts, which were presented 00. agreement 1broogh opening sta(emr...ls of counseL are as follows: On hme 7, 2007 the grievOI" was tenninated tim:n her positioo. as a CustI1l1lP.l" Service Representative at 1he court house in CocImme, Ontario_ She filed a grievance dated June 8, 2007, alleging unjust tenninahOll. For reasons not disclosed to 1he BoanI, 1he employer did not at any time hold a s1age two meeting. 1he .efl:Llal of 1he grievance to mbihation did not occur until July 14,2009_ [5] In support of1he motion for dismissal of1he grievance as lmtimely, employer counsel relied on the BoanI's decision in 1be Crown in RiPht of Ontario (Minis1Iy of Cnmmnnrty Safety and Cmrec1ional Services) and OPSEU (Gorinp:) 2008-1661 etc_ October 1, 2010 (Briggs)_ He sulmri.tted 1bat the decision is dispositive of 1he very issue before IDe, and that the Blake principle cmnpelled me to follow it -4- [6] Unioo. counsel conceded 1hat in Re Gorin..- also, the issue was 1he timeliness of .efaud to aIDimdion where no stage two meeting had been held However, he submitted 1bat in 1he particular circumstances of this case the Blake principle should not preclude the BoanI fiom deciding the matter based on 1he submissions before it Counsel referred the BoanI to article 22.14.6, which provides that "The GSB shall have no jurisdiction to alter, change, amend or enlarge any provisioo. of 1he collective agreements"_ He argued 1bat 1he absence of any .efaalCe to article 22_14_6 in 1he Board's decision in Re Gorin..- indic.a1P.s 1bat 1he union there did not make 1he argument which he was manne in the ~t case, 1bat 1he emp1oyer's iutaJlldation results in the amendment of article 223.2. He submitted that article 2232, by using the word "shall", imposes a mandatory obliga1ion on the employer to hold a stage two meeting and issue its decision following such ~ As he put it, the decision in Re ~ amends 1he article to read to the effect 1bat the employer shall, <<:if it so wishes", hold a stage 2 meeting and issue a decision. Unioo. counsel submitted that given 1bat this legal argument, which goes directly to 1he inta...dation of the relevant provisioo.s of 1he collective agreement, was not made in Re Gorin..- the Blake principle does not apply. Counsel proceeded to submit that the decisioo. in Re Gorin..- is manifestly wrong, in that it in effect IqJIaces 1he mandatmy provision with a discretionary provisiOlL [7] Counsel argued further 1bat soond labour relations policy favoors rejection of the intet...datioo. accepted in Re Gorin..-. He stated 1bat the decision creates a pa1hological labour relations problem, where the employer has no incentive to deal with grievances.. He argued 1bat by negotiating 1he grievance procedme the parties have clearly contemplated 1bat at stage two a discussion will tale place where an all~.11(J1. would be made to settle the ~ The Board's decision allows the employer to simply ignore grievances and to fmce employees and 1he union to proceed to mbdmtion directIy_ This is not conducive to somullabom relations_ -5- [8] Counsel referred me to Re Mis.ori~<;;all~ Toyota [2010] O.LAA No. 31, January 19, 2010, (Herlich). There 1he collective agreement allowed the .efl:ual of a grievance to aIDimdion provided written notice is given to 1he o1her party "widrin 10 wotking days after the receipt of~'s last decisioo.". 1be employer had taken the positioo. 1bat 1he two grievances before 1he aIbitIatol:" were inaIbitmble bef-;all!i:P. they were not .efl:Lldl to aIDimdion within 1bat time limit. [9] At paragraphs 33-36, arbitrator Herlich wrote as follows: 33. 1be employer's position rests on 1he wOlds "receipt of management's last decision" in Article 6.01 as the "trigger' for 1he commencement of the 10- day time limit And 1he employer advances an intapu:hd.ioo. of <<Jast decision" to essentially mean "most n:u:ut" decision.. It does so, to some extent, to counter 1he union's legitimate cmnplaint 1hat the employer ooght not to be pennitted to fiusmde a grievance by not responding as contemplated by the agreeIIKD and Iater objecting 1bat a refenal to aIDimdion was too Iate.. 1be employer says that, in such circumstances, 1he <<Jast decision" might well be 1he wsponse to the first stage grievance___ Indeed, 1hat is precisely what it argues in the Gast case -1here was no step 2 grievance filecL 1here was no stqJ 2 meeting held 1herefore ~'s last decisioo." was its response to the Step 1 grievance on Sep1.ember 18, 2008 and the 10 day clock began to IUD 1hen. 34. I have difficulty with this intetpu:hd.ioo. for at least two reasODS_ First, it fails to considr.r 1he wonts of Article 5_04 which also Cllulr.mpIate 1he re:fenal of grievances to mbihation but mentions a ten day period "after 1he decisioo. under StqJ No_ 2 is given"_ Readine 1hese two provisions toge1her, it is di:fficuIt to conclude that 1he parties intended anything other 1ban 1he completion of the second stage of the grievance procedme as the "trigger' for any refemd to aIDimdion.. 35. 1be second difficulty I have with 1he intetpu:hd.ioo. is the potential pathology it preserve5_ The parties might well cmrect 1heir practice to insure that stqJ 2 meetings typically occur before stqJ 2 ~ decisions are made.. But 1he employer's intetpn:hd.ioo. would effectively require 1he unioo. (particularly if it were concerned about possI"ble recalci:tIance or lack of employer coopendion in the grievance procedure - as this union might be) to refer evay grievance to mbihation after receipt of the :first stage reply :fm- fear that the employer might refuse to hold a second step meeting 01", more importantly, might simply not furnish a decision in 1he second stage, 1hns -6- rendering the :first stage reply to be <<management's last decision" :fm- the pmposes of the 10 day time limit. And while pa mill il-e 1he union to delay indefinitely in 1he face of a non-respoosive employer is equally undesirable, to effectively require the union to refer all grievances to aIDimdioo. following 1he :first stage reply would be a sorry state of affairs and no recipe :fm- hannonious Iaboor relations.. 36. FOI" 1hose reasons, I prefer an inkr.pn~tat.ion of <<management's last decisioo." as one which connotes the final decision, i.e_ the one taken at the conclusion of the grievance procedure as contemplated by the collective agreement. Le. typically at 01" after the stage two grievance ~ [10] Unioo. counsel mged me also to avoid the patho1ogicallabom relatioo.s problem recognized in Re Mis.ori~<;;anp;ll Tovota at pam.. 35, by inta...ding the collective agreement in a manner which encomages 1he employer to discuss grievances during the grievance procedure and to make a decision, before obli~ a grievor to take steps to proceed to mbi1Ia:tiOlL Counsel argued 1bat given 1he 11Ianfbtory obliga:tion on the employer in article 22.32, the grievOl" and the unioo. shooId be entitled to review the employers decisioo. at stage two before deciding whether to proceed to aIbitmtiOll. The union shooId not be required to "pathologically refer every grievance to aIbitmtionn_ Union coonsel submitted 1bat the trigger fOl" 1he clock to start nmnine for purposes of .efl:Llal to mbi1Ia:tion is the holding of a stage two meeting and 1he rendering of the employers decisiOll. This amgger" has not occurred in this case, and the .efl:Llal to aIDimdion was 1hct.efuu:; not untimely. 1be Board was mged to :find that 1he grievor had not applied for aIbitmtioo. outside the time limit specified in article 22_4_ [11] In reply, coonsel fiH:" 1he employer submitted 1bat if1he unioo. is of1he opinion that the decision Re Gorin,,- is manifestly WIIHIg, it is entitled to seek judicial review of that decision. It is not entitled to re-argne 1he same issue before this Boanl Counsel argued 1bat 1he labour relations policy concerns argued by the union and recognized by arbitIator Herlich in Re Mis.ori~<;;anp;ll Tovota do not arise under 1he collective agreement here, bPr.arl~ article 22_4 entitles a grievor to refer a grievance to aIDimdion where the employer does not issue a stage two decision within 1he specified time limits. Where no -7- decision is received within 1hose time limits, 1he clock begins to nm for refenal to aIDimdion, whe1her 01" not a fOIDJal stage two meeting had occurred as required by article 2232. Counsel explicitly concedecL in am.wa to a questioo. :from 1he BoanI, 1hat he was not disputing 1hat 1he holding of a stage two meeting is rnanda1nTy under article 223.2.. His positioo. was 1hat the failure by the employer to comply with 1hat obliga:tion had nothing to do with the IImnine of the clock for pmposes of refemd to aIbitmtiOll. This, he submitted, is 1he effect of 1he decision in Re GorinP-. [12] In Re Blake.. 1276/87 etc_, 1hen GSB Chair Shime t:AJll~ his opinion on what 1he BoanI's approach should be when a party attf"DlJl!s to convince the BoanI, as the unioo. does here, to dqJart :from its previous decisions.. After recognizing 1bat ad hoc bmnIs of aIDimdion in 1he private sector genernlly follow a policy of not departing tim:n earlier decisions unless such decisions are manifestly in error, at p_ 8-9, Mr_ Shime wrote: But 1he Grievance Settlement Board is oo.e entity - it is not a series of separately constituted boards of mbi1m:tiOll. Under Sectioo. 20(1) of 1he Crown Enmlovees Collective RarPaininp- Act 1here is "a Grievance Settlement Board" -1bat is, oo.e Board Under Section 20(4) 1he Grievance Settlement Board may sit in two panels and under Section 20(6) a decision of the majority of a panel is "the decisioo." of the Grievance Settlement Board 1bus each decision by a panel becomes a decision of the Board and in om opinion 1he standard of manifest error which is app1u....iate :fm- 1he private sector is not app1U}J1-iate fOl" 1he Grievance Settlement Board 1be Act does not give oo.e panel the right to oveuule ano1her panel 01" to sit on appeal 00. 1he decisioo.s of an earlier panel. Also, given 1he volume of cases 1bat are ClJ..uadly administered by this boarcL the continuous aftP.mpts to peISIl8de oo.e panel1bat another panel was in error only encourages a multiplicity of pmceedings and aIbi:tIator shopping which in tom creates undue adminismdive difficulties in handline the case load We are mindfuL however, 1hat there is no provisioo. for appeal and 1here are limits to judicial review. While it is om view 1hat the "manifest ~ 1heory is too lax a dandard, we recognize 1bat there may be excep1ioo.al cinmnstances where an earlier decision of this board might to be reviewed At this point we are not prepared to dr.linPate what constitutes excep1ioo.al cinmnstances and the fiesbing out of 1bat s1andard will be ddMllllined on a -8- case by case basis_ The onus will be 00. the party ~ review to establish exceptional circumstances_ [13] 1be approach set out in Re Blake has generally been followed by this BoanI.. This is not smprising because it makes eminent sense for a Board such as the Grievance Settlement BoanI.. In 1he present case, unioo. counsel submitted that 1he decisioo. in Re ~ is manifestly wrong. Additionally, he has submitted 1bat this wrong decisioo. was made in 1he absence of a legal mgument which he is makine in 1he present ~ It was submitted 1bat the denial of jurisdictioo. to amend its provisions is a fimdamental feature of the collective agreement, and since 1hat provisioo. was not coosidered in Re Gorinp- 1he BoanI shooId detennine 1he instant matter based 00. the submissions before it, ndher 1ban simply perpetuating a pOOl" erroneous decisiOIL [14] 1be union has conceded 1bat 1he facts and the issue in Re GorinP- were 1he same as in the ~t matter_ Re BIak explicitly recognizes 1bat in "excqrtional circumstances" which it der.lined to delinP.ate, it may be appnJIlliate :fm-the Board to depart fiom a priOl" decision, which in its view is manifestly wrong.. The union's position, in effect, is that such exceptional circumstances exist here, which justifies the Board revisiting an issue which it had previously decided.. [15] I am convinced 1bat the BoanI in Re Blake did not intend to encourage the peIpdua1ioo. of a resuIt which is reached in 1he absence of a coosideration of relevant legal a:uthori:ties. Where 1he Board in the pOOl" decision had considered the governing law and/or collective agreement provisions and ruled upon it, the Blake principle discomages a subsequent decisioo. departing tim:n 1he prior BoanI decision merely bef-;all!i:P. 1he Iater BoanI disagrees with it However, where relevant legal authorities had not been considered in the earlier decision, the Board is called upon to rule upon an argument hitherto not addressed by the BoanI.. In such circumstances the Board is obliged to consider 1he merits of the argument and to rule upon it, even though it may lead to a -9- :final resuIt which is clifIaad tim:n 1he result reached in 1he previous decision. That would be an "excqrtioo.al circumstance", envisaged in Re Blake. [16] 1be Board in its interim decision in this matter dated January 8, 2010, in fact recognized this exception. There 1he Board was called upon to detennine 1he issue of whether or not 1he collective agreement between 1hese parties confened jurisdictioo. on the Board to extend time limits for refenal to arbi1Iation. At pamgmpbs 8-10, 1he BoanI wrote: [8] Fmp10yer counsel submitted 1bat Re Sea2er is dispositive of the issue before me.. He submitted 1hat the BoanI in that case considered 1he identical collective agreement language and the identically worded s_ 48(16) of 1he Labour lWations Act_ It made a clear pronouncement 1hat s. 48(16) does not provide the Board1he jurisdiction to extend time limits in article 22.4 :fm- .efD.lal to aIDimdion. He submitted 1bat Re B~ ~ mandates that I follow Re ~_ In his view, given 1he Sea2er decision, it would be inappropriate :fm- me to consider Re Ajax Precisioo. and Re James Bay General Hosuital [9] Union counsel argued that I shooId not follow Re ~~ and 1hat 1he Blake principle has no application in 1he particular cir~hwces.. While unioo. counsel offered alternate reasons :fm- not applying 1he Blake principle, I need consider only oo.e. Counsel argued 1hat both Re Sea2er and Re Cherrv~ pre- dated the decision of the Ontario Divisional Coort in Re James Bay General Hosuital~. The Board 1herefore did not have the benefit of 1he guidance of 1he coort which had refined 1he law that had exided under Re Leisurewodd.. Crnmsel submitted 1hat in 1hese circumstances the Blake principle does not apply and 1bat I should consider 1he court decision in Re James Bay GeneIaI HosuitaL wi1hout simply following the outdated Board case law_ [10] Bodl counsel advised me that 1heir research did not tom up any decisioo. of this BoanI 00. this subject, which post-dated Re James Bay GeneIalllospital 1be comts have held, and it is now accqJtecL 1bat when inteIpreting 1he Labour Relations Act to detennine jurisdiction, the Board is required to be cmrect.. See, Re Leisurewodd (Div- Ct at para.. 8)_ The Coort in Re James Bay GeneIaI Hosuital has provided an Uttapn:tation of s. 48(16) which clari:fies and refines the law 1bat had evolved following Re Leisureworld. This Board did not have an opportunity, in Re Cherry or in Re Seaeer~ to consider the nu:nifi.catioo.s of this refined iuhapu::tation of s. 48(16) on 1he language in the collective agreement between 1hese parties_ In 1he cinmnstances, it is incmnbent upon me to do 50_ I agree with union counsel -10- 1bat 1he Blake principle does not prevent this BoanI tim:n considering a matter 1bat has not been previoosly considered and decided by 1he Boanl See, Re Duffy. 2007-2737 (Keller} [17] Thus, 1he BoanI proceeded to coo.sider 1he impact of the coort decision which post-dated 1he priOl" Board decisiOll. Even though in 1he fi.naI result 1he BoanI did not depart tim:n 1he pOOl" decision, it was prepared to considr.r and rule upon 1he legal argmnent not made in 1he prior decisiOll. [18] This is not to say, however, that every time a party makes any "new" argument, the BoanI should be willing to consider departing fiom a prior decision. That would be to allow a party "another crack:", somedring Re Blake clearly intended to avoid It is not possible, DOl" is it desirable, to allMlIlJ'L to delinP.ate or define what Unew argmnen1sn would 01" would not mnount to an exceptional circumstance as would justify the Board tim:n departing tim:n its prior decisions.. That is a decision to be made on a case by case basis having regard to the whole context including 1he significance of the issue in dispute and the ~~ argurnenr presented One such circumstance recognized by 1he BoanI (in its decisioo. dated January 8, 2010 in this matter .efl:Lldl to at pam.. 22 ~ is a significant judicial pronouncement 1hat directly bears upon 1he issue in dispute, which had not been considered in the prior decision(s)- [19] Having carefully considered 1he submissions of the parties, I have concluded 1bat it is not appropIiate to depart tim:n the Board's decisioo. in Re Gorinp- It is reasonable to assmne 1bat in Re ~ the union did not cite article 22.14.6 nor argue explicitly 1bat the employer's argmnent mnoun:ts to an amendment of article 223.2.. Neva1heless, the unioo.'s argmnent 1here was 1hat the emp1oyer's iukt.JU-dation was wrong and 1hat its inbpt.dation was the coned one.. While 1he union primary position was 1bat ~~ delay in the processing of these grievances occurred during 1he grievance procedme and 1herefore this Board has 1he jurisdictioo. to extend time limits" (Re Gorin,,- at pam.. 5), it also argued at (para11) 1bat: -11- This is a case where 1he Employer failed to meets its Collective Agreement obligation to hold a Stage Two meeting to discuss 1he disputes under the grievance procedme_ Accontingly, it is lDlClear at which point the c cclock: starts to ticJc>> for the referral to mbihatiOlL 1here was no event here 1bat locked in 1he date for refenal to aIDimdiOll. 1be requirement to refer these matteIs to mbitmtion is only triggered when a response :from the Fmp10yer is received And at pam: 121hat: 1he effect of the Employer's argument is 1bat once a grievance is filed the clock automa1ically starts and irrespective of whether there is a bona fide labour relations reason for a delay in holding a Stage Two meeting, 1hat c"1icking cl~ continues. Labour relatioo.s demands flexibility and reasonablP.llpss This is surely 1he case when Ihline with filed grievances_ At para 9, 1he employer's position is set out to 1he effect 1bat: That failure to hold a Stage Two meeting is not a relevant factor for this Board to take into account in this matter. No answer tim:n 1he Fmp10yer is the same as an lm~tid"actory answer_ Put simply, when 1he grievor received no reply :from a seniOl" human resource representative 01" the time :liame for 1he schednline of a Stage Two meeting had elapsed, the Unioo. had an obligation to P.!i:NIllate these grievances with a refemd to aIDimdiOIL Failure to do so renders this Board wi1hout jurisdictiOIL [20] At para19 Vice-Chair Briggs disagreed with 1he unioo.'s positioo. 1bat u1he delay took: place under 1he grievance pmcedure and 1herefore its refenal to mbitmtion is not out of 1ime"_ Then at pamgmpbs 20-22, she concluded: [20] In my view, the lack: of a Stage Two meeting 01" a decision in writing simply means 1here was no settlement at Stage Two and 1herefore the matter may be refared to mbitmtion by the Unioo. on behalf of 1he grievor_ Article 22_4 is clear 1bat if the grievor udoes not receive the decision within the specified 1:ime, the grievor may apply, 1broogh the Union, to the Grievance Settlement Board (GSB) fOl" a hearing of the grievance within :fifteen (15) days of the date he 01" she received the decision or within :fifteen days of the specified time limit for receiving 1he decisiOIL D [21] In this case more 1ban two months passed after the nspecified time limit for receiving 1he decision" and therefore I am without 1he jurisdiction to hear and deff"fl11ine 1hese six grievances_ -12- [22] I agree with 1he Employer 1bat it wooId make no labour reIatioo.s sense if this Board were to detennine that 1he Fmp10yer cooId, in effect, foreclose grievances fium proceeding in a timely fashion, 01" indeed at aU, mereIy by failine to hold Stage Two meetings or by failine to o1herwise participate in the grievance pmcedure. In the event that the Employer elects not to meet its Collective Agreement obligatioo.s lq;a1tbg the proces..m.e of grievances, 1he "clock: coo.tinues to tick". [21] The foregoing establishes that 1he submission on the mP.aTJine of article 2232 in Re ~ was, in substance, the same as here.. While article 22_14_6 may not have been explicitly citecL when a party argues 1bat a particular provision means X and not Y, it is implicitly s1a1ing that accepting Y would be inconsistent wi1h 1he in1en1ioo. of the parties. 1he fact 1bat 1he union in Re Gorin,,- did not articu1ate, as counsel here did, 1bat the employer's position mnounts to an amendment contnrry to article 22..14.6, does not male counsel's mgument a new legal arglDoent It is a new, and perhaps a better, articuIa1ioo. of1he same argument. [22] In any event, I do not read Re Gorin,,- as union counsel does_ That decision does not, conclude, directly or implicitly, 1bat 1he emp1oyer's obligatioo. under article 2232 to hold a stage two meeting is not 111andatOIY. What it does state is 1hat despite 1he emp1oyer's failure to comply with its collective agreement obligatioo.s 1he cCclock continnP.!iO to ticY_ In this regard, I also note that employer counsel here explicitly conceded 1bat the obligation to hold a stage two meeting was rnanda1nTy. His position, which was also the position accepted by 1he Board in Re Gorin,,- was that 1he breach of 1he collective agreement obligatioo. by 1he employer is not a relevant :factm- with R:ga1d to the timeliness of the refenal of a grievance to mbi1mtiOlL [23] WIth reganI to 1he union' s policy arglDoent. I agree that the parties have clllllr..upIated, by negotiating 1he language in article 2232, 1bat an attf"Dlll! will be made to discuss and resolve grievances at a stage two meeting between the union and a senior employer representative or his 01" her tkippee.. I also agree 1bat such an attf"Dlll! to resolve -13 - grievances before proceeding to aIbitmtioo. makes vay somullabom relations sense.. In Re Mis..ori~<i;31IPJ1 Toyota.., arbitrator Herlich expressed disagreement: with the intapu:hdioo. mged upon him by the employer based on the language in the collective agreement, and also set out 1he policy coosidemtion as further support for rejecting the employer's UttaJlldatiOIL Here, despite Re GorinP- and the instant decision, the employer's obligation expressed in article 223.2 remains intact Whatever remedies 1he unioo. may have with R:ga1d 1he emp1o~s failure to cmnply with it, the BoanI has held in Re GorinP-1bat such non-compliance does not prevent the clock tim:n ticking for pmposes of referral to aIDimdiOIL While article 22.32 is not a model of cIarity, 1bat proposition is consistent with the parties' inten1ioo. to resolve disputes under the collective agreement Uas quickly as posst"b1en, expressed explicitly in article 22_1. On 1he other hand, accepting 1he union's position would allow grievors and 1he union to sit 00. grievances indr.finitely awaiting a stage two response :from the employer, and to seek aIbitmtioo. months or even years later, as 1he grievor here has done_ That is not consistent with the parties' t:AJll~ desire to resolve disputes Uas quickly as posst"blen_ [24] The instant grievance was refared to mbi1m1ioo. more 1han two years after it was filed FOI" all of the foregoing :reasnns, the Board concludes 1bat the .efl:Llal was out of time.. Given the BoanI's earlier findine 1bat it lacks jurisdiction to extend time limits fOl" referral to mbitm:t:ioo, 1he employer's motioo. is granted and 1he grievance is hereby dismi~V'J'I Dated this r day of August 2011_ ~ ., ." '" ,. , -. . - . ',I' , , . ., _. , .. ~ '-.1"0 I ~ '.'.':. ):_1 ,. , .. ,'_ .;;<<~~. . _ rl ,', Nunal , Vice-Chair