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HomeMy WebLinkAbout2003-3075.Union Grievance.05-04-04 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2003-3075 UNION# 2003-0999-0030 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Union - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Bram HerlIch Vice-Chair FOR THE UNION GavIn Leeb Bamster and SolIcItor FOR THE EMPLOYER Jane Hooey, Semor Counsel Chnstopher Jodhan, Counsel Management Board Secretanat HEARING March 22, 2005 2 DeCISIon The Umon has filed a gnevance assertIng that unclassIfied employees In the CorrectIOnal BargaInIng Umt (hereInafter referred to as the "correctIOnal umt") are entItled to "max plus ment" by vIrtue of AppendIx 26 of the Central WorkIng CondItIOns and Employee Benefits CollectIve Agreement (hereInafter referred to as the "central agreement") By way of background, the partIes descnbed for me how a number of documents govern the terms and condItIOns of employment of OPS employees represented by thIS umon. The partIes have negotIated the central agreement whIch applIes to all employees represented by thIS umon. In addItIOn, the terms of the CorrectIOnal BargaInIng Umt CollectIve Agreement (hereInafter referred to as the "correctIOnal agreement") apply to employees In the correctIOnal umt. (ProvIsIOns of thIS agreement employ the prefix "CORR" In advance of all artIcle numbers) All other employees (i e those not In the correctIOnal umt) represented by thIS umon are covered by the terms of the Umfied BargaInIng Umt CollectIve Agreement (hereInafter referred to as the "umfied agreement") (ProvIsIOns of thIS agreement employ the prefix "UN" In advance of all artIcle numbers) Thus, In respect of OPS employees represented by thIS umon there are 2 collectIve agreements the first (composed of the central agreement combIned wIth the correctIOnal agreement) whIch applIes to employees In the correctIOnal umt; the second (composed of the central agreement combIned wIth the umfied agreement) whIch applIes to all other employees represented by the Umon. Although on ItS face, the umfied agreement has no applIcatIOn to employees In the correctIOnal umt, It IS useful to begIn by settIng out the terms of UN 162 1 (whIch confers the benefit the partIes have referred to as "max plus ment") EffectIve January 1 2002, an employee who IS at the maXImum of the salary range for hIS or her classIficatIOn shall be elIgIble for an Increase to hIS or 3 her rate of pay of 1 percent (1 %) over the maXImum rate of the claSSIficatIOn. Such Increase shall be based on satIsfactory performance For employees who have been at the maXImum of the range for twelve (12) months or more on January 1 2002, the Increase shall be effectIve upon January 1 2002 For employees who have been at the maXImum of the range for less than twelve (12) months on January 1 2002, the Increase shall be effectIve twelve (12) months after the employee achIeves the maXImum of the range ArtIcles UN 16.2 2 and UN 16.2 3 provIde for further sImIlar Increases to be effectIve January 1 2003 and January 1 2004 There IS no analogous provIsIOn to be found In the correctIOnal agreement. However AppendIx 26 to the central agreement IS In the form of a letter from the Employer's DIrector Corporate Labour RelatIOns to the Umon PresIdent, the text of whIch reads as follows ThIS wIll confirm our understandIng reached at negotIatIOns that where an unclassIfied employee progresses to the maXImum rate of a classIficatIOn, the employee wIll be elIgIble for the addItIOnal amounts specIfied In the new artIcle 162 contaIned In the Umfied collectIve agreement. It IS on the basIs of thIS latter provIsIOn that the Umon asserts the entItlement of unclassIfied correctIOnal umt employees to max plus ment. The Employer dIsputes any such entItlement and has IndIcated that It Intends to call eVIdence of negotIatIng hIStory to establIsh that a proper InterpretatIOn of the collectIve agreement does not gIve nse to any such entItlement. AlternatIvely the Employer asserts that the eVIdence wIll establIsh that AppendIx 26 was mIstakenly appended to the central agreement rather than to the umfied agreement. It IS common ground that, generally speakIng, the umfied agreement has no applIcatIOn to employees In the correctIOnal umt. In that context and to that extent, I may be asked to rectIfy the terms of the relevant collectIve agreement. ThIS decIsIOn, however deals wIth the prelImInary ObjectIOn raised by the Employer to the gnevance proceedIng any further It IS asserted that the gnevance IS untImely and therefore cannot proceed. ArtIcle 22 13 1 governs the tImIng ofUmon Gnevances as follows 4 Where any dIfference between the Employer and the Umon anses from the InterpretatIOn, applIcatIOn, admInIstratIOn or alleged contraventIOn of the Agreement, the Umon shall be entItled to file a gnevance at the second stage of the gnevance procedure provIded It does so wIthIn thIrty (30) days folloWIng the occurrence or ongInatIOn of the CIrcumstances gIVIng nse to the gnevance In response to the Employer's ObjectIOn, the Umon asserts that thIS IS a contInuIng gnevance and that whIle any delay In ItS filIng may be relevant to questIOns of remedy such delay IS not otherwIse fatal to the gnevance In the alternatIve, the Umon claims that the Employer has waived ItS nght to assert any tImelIness ObjectIOn. No eVIdence was called In support or In defence of the Employer's motIOn. The partIes made It clear before me, however that most of the facts necessary to dIspose of the prelImInary Issue are agreed or at least, not dIsputed. There IS one area, however where the lack of eVIdence or specIfic agreement on the facts IS relevant, as wIll be seen shortly to one aspect of my decIsIOn. The uncontroverted facts are as follows The collectIve bargaInIng whIch resulted In the current collectIve agreements was concluded In May 2002 when the agreements were ratIfied. The resultIng agreements were sIgned In September of 2002 CertaIn provIsIOns of the agreements were to have retroactIve effect. Among those were the "max plus ment" provIsIOns of the umfied agreement whIch, as set out above, contemplate an effectIve date of January 1 2002 DespIte that contemplated effectIve date, the Employer dId not Implement thIS Increase untIl October 2002 (I was advIsed that delayed ImplementatIOn of va no us monetary entItlements was the subject of a separate gnevance and decIsIOn by thIS Board) EssentIally the "max plus ment" provIsIOns contemplate the elIgIbIlIty of affected employees who have reached the top of the salary gnd to receIve an addItIOnal percentage wage Increase on the first, second and thIrd anmversanes of theIr ascenSIOn to the salary maXImum. Employees have IndIVIdual anmversary dates for the purpose, among others, of elIgIbIlIty for "max plus ment" GIven the numbers of unclassIfied employees In the correctIOnal umt, It was 5 not therefore dIsputed that on any gIven day or certaInly In any gIven week, there would lIkely be at least one unclassIfied correctIOnal umt employee who would celebrate an anmversary of theIr ascenSIOn to the maXImum level of the salary gnd. The Employer concedes that, gIven the delay In the ImplementatIOn of "max plus ment" the "clock" wIth respect to the tImelIness of any gnevance claimIng entItlement to "max plus ment" could not have begun to run pnor to October 2002, the first date upon whIch such Increases were Implemented. The present Umon gnevance was filed approxImately one year later In October 2003 The Employer asserts that the gnevance IS therefore clearly out of tIme and that the Board should not exerCIse ItS dIscretIOn to extend the tIme lImIts The Umon, however does not seek to have the Board extend any tIme lImIt. It agrees that the gnevance could not lIkely have been filed pnor to October 2002, but prefers the Image of a "wIndow" to that of the clock proffered by the Employer In the Umon's VIew the abIlIty to file a gnevance anses not only wIth the very first Instance of the Impugned demal, but on each and every IndIVIdual occaSIOn that the Employer refuses to consIder the applIcatIOn of "max plus ment " to employees the Umon claims are entItled to such elIgIbIlIty For that and other reasons the Umon asserts that thIS gnevance IS In the nature of a contInuIng one And whIle It accepts that the tImIng of ItS filIng may have an Impact on questIOns of remedy It asserts that the contInuIng nature of the gnevance IS a complete answer to the Employer's claim that the gnevance IS untImely FInally and In the alternatIve, the Umon claims the Employer has waived ItS nght to object to the tImelIness of the gnevance The gnevance was filed on October 15 2003 The statement of gnevance IS as follows The employer has vIOlated specIfically but not exclusIvely ArtIcle 2, ArtIcle UN16.2 and AppendIx 26 of the CollectIve Agreement, In regards to salary adjustments for unclassIfied employees wIthIn the CorrectIOnal BargaInIng Umt. 6 No Stage Two gnevance meetIng was held and there was no Employer response to the gnevance By letter dated November 28 2003 the Umon advIsed the Employer and the RegIstrar of thIS Board that It was refemng the gnevance to arbItratIOn. On June 9 2004 the matter proceeded to the JOInt ReVIew Process under the terms of the collectIve agreement and a heanng date of December 17 2004 was scheduled. That heanng was adjourned on consent of the partIes, apparently at the Umon' s request. The matter was then rescheduled for heanng on March 22, 2005 when the prelImInary Issues now under consIderatIOn were argued before me It was not untIl March 14 2005 that the Employer first IndIcated that It mIght raise a prelImInary ObjectIOn to the gnevance on the basIs of tImelIness On March 18 2005 the Employer advIsed that It would be bnngIng such a motIOn. In those CIrcumstances and relYIng In partIcular on the schedulIng of the matter through the JOInt ReVIew Process as a "fresh step" the Umon urges me to conclude that the Employer has waived any nght to object to the tImelIness of the gnevance I am satIsfied that the Employer's prelImInary ObjectIOn must be dIsmIssed on any of the folloWIng grounds (1) the Employer has faIled to establIsh that the gnevance IS untImely (2) the gnevance IS a contInuIng one and (3) the Employer has waived ItS nght to object to the tImelIness of the gnevance I wIll now bnefly reVIew my reasons for amVIng at these conclusIOns It IS WIth respect to the first basIs for rejectIng the Employer's claim that the lack of specIficIty In some of the eVIdence IS matenal The Employer claims that the tImelIness clock began to run In October 2002 when It first Implemented "max plus ment " Increases There IS some ment to thIS posItIOn Insofar as It IS restncted to any claim beIng advanced on behalf of the first correctIOnal umt unclassIfied employee(s) to reach theIr IndIVIdual anmversary ofamvIng at the maXImum pOInt of the salary gnd. On the basIs of the undIsputed facts, It IS reasonable to assume that such an (otherwIse umdentIfied) employee may have reached that pOInt as early as January 1 2002 but mIght not have been In a posItIOn to gneve untIl October 2002 when the Employer first Implemented "max plus ment " and dId not apply It to thIS (and lIkely numerous other) unclassIfied correctIOnal 7 employees But gIven the general factual parameters the partIes agreed to It would appear that IndIVIdual employees reachIng that anmversary would have been a dally or weekly event from that pOInt forward. Employer counsel was candId enough to concede that for an employee who reached that anmversary pOInt on the eve of the filIng of the Umon gnevance, an IndIVIdual gnevance would have been tImely had It been filed on the same day as the Umon gnevance At Its heart, my findIng In thIS regard may be lIttle more than a restatement of my next conclusIOn that the Umon gnevance IS a contInuIng one What IS clear however IS that there was and contInues to be a dIfference between the partIes WIth respect to the InterpretatIOn of the collectIve agreement and, In partIcular wIth respect to the elIgIbIlIty of unclassIfied correctIOnal umt employees to receIve "max plus ment" GIven the general factual agreement of the partIes and the Employer's faIlure to establIsh that no unclassIfied correctIOnal umt employee would have reached the relevant anmversary date dunng the 30-day penod pnor to the filIng of the gnevance I belIeve the Employer has faIled to meet the burden of establIshIng that the gnevance IS, on ItS face, untImely The tImIng of the filIng of the gnevance may Impact on remedy In the event the gnevance IS ultImately successful, but I am not persuaded that the Employer has establIshed that It IS therefore untImely I am also persuaded that the Umon gnevance IS properly charactenzed as contInuIng. There are at least two separate paths to that conclusIOn. Even before descnbIng those paths, I note that the Employer dId not explIcItly dIspute the Umon's charactenzatIOn of the gnevance as contInuIng. It argued rather that, for reasons I wIll come to shortly I should uphold ItS prelImInary motIOn notwIthstandIng any charactenzatIOn of the gnevance as contInuIng. I was referred to a number of cases outlImng the nature of a contInuIng gnevance The law on the pOInt IS fairly well settled and I wIll refer only to the decIsIOn of the Chair of thIS Board (actIng as a pnvate arbItrator) In the case of Re Religious Hospitallers of St. Joseph of Hotel Dieu of Kingston and Ontario Public Service Employees Union (1992),29 L AC (4th) 326 (Stewart) At page 331 of ItS award the Board of ArbItratIOn offered the folloWIng 8 In determInIng whether or not a gnevance IS properly charactenzed as a contInUIng gnevance It IS necessary to look to whether It IS alleged that the bargaIn between the partIes contInues to be vIOlated. In thIS Instance, the nature of the gnevance In ItS sImplest form IS that the employer has agreed to compensate Ms Spence on the basIs of her years of servIce and has not complIed wIth that oblIgatIOn. If the umon's analysIs of the effect of the collectIve agreement IS correct, notwIthstandIng that the placement on the gnd was a dIscrete decIsIOn made on one occaSIOn, the employer contInues to have the benefit of Ms Spence's expenence but IS not compensatIng her In recogmtIOn of that expenence WhIle the sItuatIOn arose as a result of one decIsIOn of the employer the gnevance relates to a contInuIng vIOlatIOn of the alleged bargaIn. The vIOlatIOn claimed occurs at each pay penod when the employer has the benefit of Ms Spence's servIces but does not compensate her for them In accordance wIth the collectIve agreement. In our VIew thIS gnevance raises an allegatIOn of the contInuIng vIOlatIOn of the ongOIng bargaIn between the partIes The decIsIOn In that case IS consIstent WIth pnor authontIes (e g. Re Port Colborne General Hospital and ONA. (1986),23 LAC (3d) 323 (Burkett) and the decIsIOn of thIS Board In Redmond, GSB # 1988-0928 (Roberts)) and has been followed In subsequent ones (e g. Re The Crown in right of Ontario (Ministry of the Attorney General) and Ontario Public Service Employees Union (Hunt et al.) (2003) 120 L.AC (4th) 119 (Abramsky) a decIsIOn of thIS Board, and Re Family and Children s Services of Renfreyt, County and Ontario Public Service Employees Union (2004), 124 L AC (4th) 321 (Knopf)) HavIng regard to the foregoIng I am satIsfied that the gnevance meets the conventIOnal descnptIOn of a contInuIng one It claims, essentIally Improper payment of wages, an oblIgatIOn whIch contInues and recurs wIth each pay penod. I note too In thIS regard that the gnevance mIght otherwIse be descnbed as one whIch challenges the Employer's faIlure to Implement "max plus ment " and that the grant of such compensatIOn IS not automatIc, but one whIch IS dependent upon the employee's satIsfactory performance In that respect, It mIght be argued that the Impugned faIlure IS a sIngular (or at least an annual) event whIch generates ongoIng consequences rather than resultIng In a senes of ongOIng alleged breaches I would be more receptIve to thIS argument (whIch was not specIfically advanced by the Employer), If thIS were a case where the Employer argued that It had turned ItS mInd to IndIVIdual entItlement and had demed It on the basIs of unsatIsfactory performance Such was not the case Rather the Issue whIch separates the partIes IS the very entItlement of affected employees to even be consIdered 9 for the addItIOnal compensatIOn. In that context, I am satIsfied that the Employer's asserted oblIgatIOn IS an ongoIng one whIch IS repeatedly at Issue WIth each paycheque There IS, however a second basIs upon whIch the gnevance can be said to be a contInuIng one The frequency wIth whIch separate IndIVIdual employees reach the reqUIsIte anmversary date IS such that each such Instance provIdes a fresh crystallIzatIOn of the Issue whIch separates the partIes And gIven the partIes' agreement as to the general factual parameters of the case, It would appear that the Issue of the applIcatIOn of "max plus ment" to unclassIfied correctIOnal employees IS one whIch crystallIzes wIth abundant frequency In that context, a sImIlar conclusIOn obtaIns even In respect of the very first of the relevant employees to reach the anmversary date Such an employee would have otherwIse first become entItled to advance a claim for "max plus ment" sometIme between January 2002 (the "retro" date) and October 2002 (the ImplementatIOn date) Even assumIng that the delay In filIng a gnevance In October 2003 In respect of a claim that crystallIzed In October 2002 results In a dIsentItlement to claim the "max plus ment" for the entIre year whIch follows the first anmversary date, the second or thIrd anmversary dates whIch follow would generate another claim even where the claim mIght otherwIse be seen to anse only once In a gIven year for a gIven employee In short I am satIsfied that there IS an ongoIng and SUbSIStIng dIfference between the partIes - a dIfference whIch crystallIzes In actual fact not only wIth each succeSSIve paycheque to an affected employee but also commenCIng on each and every relevant anmversary date of any other allegedly affected employee The Employer whIle not explIcItly challengIng the Umon' s charactenzatIOn of the gnevance as contInuIng, asserted that thIS Board was beIng asked to Ignore the tIme lImIts of the collectIve agreement. It urged that a hIgher standard apply In the case of a Umon gnevance SInce the Umon IS better placed to IdentIfy and understand complex legal claims (as well as the IntentIOn of the negotIatIng partIes) than IS the tYPIcal employee who may be largely unschooled In labour relatIOns matters There should come a pOInt where the Umon ought sImply not be permItted to advance even a contInuIng gnevance In the present case, where a delay In the range of a year separates the filIng of the gnevance and the first real opportumty to do so the Umon should be vIewed as well beyond the pOInt where It ought to be permItted to advance even a contInuIng gnevance 10 Thus, argues the Employer the only way the Umon ought to be permItted to advance the gnevance IS If thIS Board IS satIsfied that there are reasonable grounds for extendIng the tIme lImIts And SInce no such grounds have been advanced, the gnevance ought to be dIsmIssed. Of course, as IndIcated earlIer the Umon' s clear faIlure before me to establIsh a basIs for the extensIOn of tIme lImIts no doubt IS related to the fact that It does not seek any such extenSIOn. And whIle the Employer candIdly conceded that, In cases of contInuIng gnevances, matters of undue delay are dealt wIth as questIOns of remedy not as a basIs for declImng to hear a matter It stIll urged, for the reasons just set out, that the gnevance be dIsmIssed. With the greatest of respect to the Employer's enthusIastIc submIssIOns, I am not persuaded that, as a general matter or In the specIfic context of the Instant case, there IS any persuasIve or compellIng reason to rethInk the junsprudence wIth respect to a well- settled legal Issue There may well be dIre consequences whIch flow from the delay In filIng a contInuIng gnevance But as Employer counsel conceded, arbItrators have engaged In determInIng those consequences, when appropnate, In the remedIal phase of theIr delIberatIOns wIth respect to contInuIng gnevances Delay has not been vIewed as an absolute bar to proceedIng wIth a contInuIng gnevance I do not propose to Introduce any such InnOvatIOn. ThIS bnngs me finally to the Umon' s alternatIve submIssIOn I e that the Employer has waived any nght to object to the tImelIness of thIS gnevance AgaIn, we are traversIng well-travelled legal terraIn and there was lIttle controversy generated wIth respect to the appropnate legal pnncIples The Umon referred to numerous cases In support of ItS posItIOn (see for example Tiel, GSB #1994-1419 (Venty), Tharakan, GSB #1986-1976 (KIrkwood) and two separate unreported decIsIOns InvolvIng George BroYf,n College and Ontario Public Employees Union a decIsIOn of ArbItrator Burkett dated March 15 1998 and a decIsIOn of ArbItrator Mitchmck dated October 26 2000) The Employer cIted Re 11 Cancer Care Ontario and Canadian Union of Public Employees Local 3316 (2003), 118 L AC (4th) 358 (DumoulIn) Dhanju, GSB #1992-3599 (Backhouse) Re Hotel-Dieu Grace Hospital and Canadian Auto Workers Local 2458 (2002), 106 L AC (4th) 1 (Knopf) as well as an extract from Brown & Beatty Canadian Labour Arbitration. For our present purposes the Brown & Beatty extract (at p 2-107 et seq ) IS InstructIve The concept of "waiver" connotes a party not InSIStIng on some nght, or gIVIng up some advantage However to be operatIve, waiver wIll generally reqUIre both knowledge of and an IntentIOn to forego the exerCIse of such a nght. In ItS applIcatIOn, waiver IS a doctnne that parallels the one utIlIzed by the cIvIl courts known as "takIng a fresh step" and holds that by fallIng to make a tImely ObjectIOn and "by treatIng the gnevance on ItS ments In the presence of a clear procedural defect, the party Waives the defect." That IS, by not obj ectIng to faIlure to comply wIth mandatory tIme-lImIts untIl the gnevance comes on for heanng, the party who should have raised the matter earlIer wIll be held to have waived non-complIance, and any ObjectIOn to arbItrabIlIty wIll not be sustaIned. ThIS has been held to be so even though there was a tImely ObjectIOn as to arbItrabIlIty but not one that related to the faIlure to meet tIme lImIts Where, however the ObjectIOn to untImelIness IS made at the earlIest opportumty even If It IS not made In wntIng, It wIll preclude a findIng that the Irregulanty was waived. [footnotes omItted] Perhaps equally apt IS the conCIse summary whIch ongInates In Fung Anand GSB # 1989-1798 (Stewart) and IS cIted In the Tiel decIsIOn supra at p 10 The pnncIple that these cases establIsh IS that an ObjectIOn based on non- complIance wIth tIme lImIts IS waived when there has been a faIlure to raise the ObjectIOn In a tImely manner and the takIng a fresh step pnor to raiSIng the obj ectIOn. Once the tImelIness ObjectIOn has been waived It cannot be revIved by notIce These cItatIOns and the cases referred to dIsclose that a "fresh step" mIght consIst of lIttle more than partIcIpatIOn In subsequent steps of the gnevance procedure or In the referral of a gnevance to arbItratIOn. There IS no doubt In my mInd that, In the present case, the Employer's partIcIpatIOn In the JOInt ReVIew Process as contemplated by ArtIcle 22 17 of the collectIve agreement and descnbed thereIn as "an Integral part of the dIspute 12 resolutIOn mechamsm" constItuted a fresh step In the proceedIngs At a mImmum, the Employer's faIlure to raise any tImelIness Issue for the penod of approxImately 1-1/2 years between the filIng of the gnevance and the eve of the heanng before me reqUIres some compellIng JustIficatIOn to aVOId the conclusIOn that the Employer has waived ItS nght to raise any tImelIness ObjectIOn. WhIle It was not framed precIsely In that fashIOn, the Employer dId seek to explaIn and JustIfy ItS delay In raiSIng the obj ectIOn. In advancIng thIS aspect of ItS case, the Employer relYIng on the second sentence of the first paragraph of the Brown & Beatty extract, essentIally demes that, whatever mIght otherwIse be suggested by ItS conduct, It knoYf, ingly waived any procedural IrregulantIes In essence, the Employer argues that It had no knowledge of the nature of the case untIl shortly before makIng ItS IntentIOn to raise a tImelIness ObjectIOn clear to the Umon. The formal notIce of IntentIOn to raise a tImelIness obj ectIOn was delIvered promptly after the Umon finally complIed wIth repeated Employer requests to provIde partIculars of the gnevance Of course, the Umon was qUIck to pOInt out some of the Iromes of the Employer claim It IS only by fallIng to formally respond to the gnevance and by declImng to partIcIpate In any Stage Two gnevance meetIng that the Employer IS able to maIntaIn ItS dISIngenuous state of Ignorance about the nature of the gnevance The Employer should not be rewarded for that conduct by beIng permItted to Wait a year and a half untIl the eve of an arbItratIOn heanng to for the first tIme, raise an ObjectIOn to the tImelIness of the gnevance Whatever ment there may be to thIS partIcular Umon cntIcIsm (and there should be no doubt that both the Integnty of the process and the Interests of the partIes should make full partIcIpatIOn In all aspects of the gnevance procedure the norm), there IS no questIOn that raiSIng an ObjectIOn to tImelIness at the first reasonably avaIlable opportumty wIll lIkely preclude any findIng of Waiver So for example, where the CIrcumstances gIVIng nse to the tImelIness ObjectIOn are not known (leavIng aSIde the questIOn of whether they ought to have been known) 13 untIl the eve of the heanng, the party raiSIng the ObjectIOn then may not be taken to have waived ItS nght to do so ThIS case, however cannot be charactenzed In that fashIOn. Indeed, a cymcal observer mIght be forgIven the conclusIOn that what permeates the Instant case IS the prolonged and repeated sound of heels beIng dragged on both sIdes of the collectIve bargaInIng dIvIde The Employer Implements certaIn provIsIOns some five months after the ratIficatIOn of the new agreement; the Umon, for reasons It declInes to explaIn, delays filIng a gnevance for a year the Employer declInes to fully partIcIpate In the gnevance procedure but some 15 months after the gnevance IS filed makes a demand for partIculars, the Umon complIes wIth the request two months later and finally two workIng days before the scheduled heanng and almost a year and a half after the gnevance was filed, the Employer for the first tIme advIses that It Intends to raise a tImelIness Issue It IS agaInst thIS backdrop that the partIes pOInt fingers at each other essentIally urgIng thIS Board to find that the other's delay was the more senous, the more troublIng and the more fatal to ItS case But agaIn and despIte the VIew of the dIspassIOnate cymcal observer If I were persuaded that somethIng very recently brought to the Employer's attentIOn had set off the tImelIness warmng lIght for the first tIme - even at thIS late stage of the process - I mIght be not be persuaded to conclude that the Employer had waived ItS nght to make the ObjectIOn. However I was provIded wIth copIes of both the gnevance dated October 15 2003 and the partIculars provIded by the Umon dated March 14 2005 There IS sImply nothIng In the latter document whIch IS not already contaIned In the gnevance Itself and whIch bnngs any Issue of tImelIness to the fore Indeed, nothIng can be pOInted to In the Umon's partIculars as raisIng tImelIness Issues for the first tIme In the Employer's mInd. In other words, on March 14 2005 the Employer was In no better posItIOn to raise a tImelIness ObjectIOn than It had been on October 15 2003 And (apart, of course, from the ImmInent commencement of the arbItratIOn proceedIngs) neIther dId It suddenly face any more preSSIng urgency to do so In the Intenm, It had foregone any opportumty to raise the Issue eIther dunng the gnevance procedure or dunng the JOInt ReVIew Process or by way of any other less formal commumcatIOn between the partIes In these cIrcumstances, I am satIsfied that the Employer has waived ItS nght to object to the tImelIness of the gnevance 14 HavIng regard to the foregoIng, the Employer's motIOn IS hereby dIsmIssed. Heanng In thIS matter wIll contInue on the days prevIOusly scheduled. Dated at Toronto thIS 4th day of Apnl 2005 .,.=,~ .~.~L~~~~l: - II.. ",. ranI" er icli Vice-Chair