Re

Teamsters Union Local 880 et al. and I.C.L. International

Carriers Ltd. et al.

[1980] O.J. No. 3717

29 O.R. (2d) 766

114 D.L.R. (3d) 244

4 A.C.W.S. (2d) 233

 Ontario

 High Court of Justice

 Divisional Court

Pennell, Steele and Montgomery, JJ.

July 30, 1980.

R. G. Colautti, for applicants.

L. P. Kavanaugh, for respondents.

The judgment of the Court was delivered by

1 STEELE, J.:-- This application is for judicial review of the award of His Honour Judge Gordon R. Stewart, chairman of a board of arbitration, under the provisions of a collective agreement between I.C.L. International Carriers Limited (hereinafter referred to as the company) and Teamsters Union Local 880 (hereinafter referred to as the union), and for an order quashing the award and directing the board to reinstate Gerald Neidrauer to his employment with full seniority and wages. The grounds of this application are basically as follows.

2     First, the failure of the board of arbitration to follow mandatory terms of the collective agreement, thereby losing its jurisdiction, and secondly, the denial of natural justice to the respondent, Neidrauer, due to the method of making the award after the death of the company's nominee subsequent to the hearing.

3     The agreement contained the following applicable provisions:

ARTICLE 3: MANAGEMENT FUNCTIONS

1. The Union recognizes that the Company has the exclusive right to manage the business, to exercise all of the prerogatives of Management, and, without affecting the generality of the foregoing, it has the right to determine the size of and direct the work force, to extend or curtail operations and to hire and promote, except to the extent that the said rights and prerogatives have been specifically delegated to the Union, or, otherwise curtailed in this Agreement. The Company also has the exclusive right to discharge, suspend, or otherwise discipline employees for just cause.

2. The above clause shall not deprive the Employee of the right to exercise the Grievance Procedure as outlined in this Agreement.

. . . . .

ARTICLE 6: GRIEVANCE PROCEDURE

1. In this Article a Grievance shall consist only of a dispute concerning the interpretation and application of any clause in this Agreement, alleged violations of the Agreement and alleged abuses of discretion by Supervision in the treatment of employees contrary to the terms of this Agreement. If any question arises as to whether a particular dispute is, or is not a grievance within the meaning of these provisions, the question may be taken up through the Grievance Procedure, and determined, if necessary, by Arbitration.

. . . . .

4. Grievances dealing with discharges and suspensions shall be registered in writing within seventy-two (72) hours, (Saturdays, Sundays and Statutory Holidays excluded), of the time of the discharge or suspension and shall commence with Step (b) of the Grievance Procedure ...

5. ...

A notice of intent to Arbitrate under the foregoing provision shall contain the name of the aggrieved party's appointee to the Board of Arbitration, and, within ten (10) working days from the receipt of the notice of intent to arbitrate, the other party must in turn, name their nominee. A third member to act as Chairman shall be appointed on the recommendation of the respective appointees. Should the members fail to select a Chairman within thirty (30) calendar days from the date of their appointment, the members shall request the Ontario or Federal Minister of Labour to name a Chairman. Should either party fail to name an appointee, the other party shall ask the Federal or Provincial Minister of Labour to make the appropriate appointment.

. . . . .

7. The Board of Arbitration shall not have the right to alter or change any provisions of this Agreement, or to substitute any new provisions in lieu thereof, or, to give any decision inconsistent with the terms and provisions of this Agreement. The Board, however, shall have the power to set aside, or vary, any penalty or discipline imposed relating to the Grievance, then before the Board.

. . . . .

ARTICLE 10: INVESTIGATION OF ACCIDENTS

1. Suspension for the investigation of an accident shall not exceed three (3) days, (Saturdays, Sundays and Statutory Holidays excluded). Employees shall be paid for all lost time during said investigation period, should it be found that they were not at fault.

. . . . .

ARTICLE 25: RULES & REGULATIONS

General Rules and Regulations Governing the Actions of all Employees

. . . . .

All penalties and reprimands must be issued to the employee within seventy-two (72) hours from the time the infraction became known with a copy to the Local Union, otherwise, the penalty or reprimand will be considered, null and void.

1. ACCIDENT

(a) Accidents for which the employee is at fault, or, for which his action or lack of action is a contributory factor, will result in disciplinary action, which may range from "reprimand" to "dismissal" according to the seriousness of the accident, the degree of negligence or carelessness, and, frequency of accident.

4     The grievance in question was dated October 26, 1978, and read as follows:

I feel that I have been unjustly discharged from I.C.L. for an accident I had on October 17th, 1978, and I wish to be re- instated with full seniority.

5     The grievance concerned a dismissal of Neidrauer by the company on October 26, 1978, following an accident in which he had been involved on October 17, 1978. This was seven days after the accident had become known to the company. It was submitted by the union that such suspension contravened the requirement of art. 25 requiring penalties or reprimands to be issued within 72 hours from the time that the infraction became known and that the arbitrators had no jurisdiction. The submission was raised before the arbitrators on the close of the company's case. The arbitrators reserved decision on the issue, heard the balance of the evidence and argument and also reserved the decision on the merits of the grievance.

6     Subsequently, on August 1, 1979, the solicitor for the company wrote to the chairman advising him of the death of the company nominee and making certain representations as to the procedure to be followed. He pointed out that he believed that it was open to the company, following a hearing, to appoint a replacement prior to the issuance of the award. On August 11th, in the absence of counsel for the union, there was an informal meeting between the chairman, the union's nominee on the board of arbitration, and counsel for the company with respect to the procedure to be followed. On August 22, 1979, the chairman wrote to the company's counsel with a copy of the letter to both the union's nominee and to the union's counsel referring to all of the above matters and, further, setting out his understanding of the informal position of both the company's nominee prior to his death, which had been to dismiss the grievance, and the union nominee's belief that the grievance should be allowed. In the letter, he indicated that while his award remained incomplete, he had concluded that the grievance should be dismissed and that he saw no point in the company appointing someone to review the chairman's award and the evidence in support thereof. This letter was received by the union's counsel the following day. The award was dated August 22, 1979, but was not forwarded by the chairman to the parties concerned until September 10, 1979. The chairman's award disallowed the grievance and affirmed the discharge of Neidrauer. In the award, he dismissed the motion as to lack of jurisdiction, finding that there was a valid discharge within the terms of the collective agreement.

7     The accident occurred on October 17, 1978, and there is no dispute that its seriousness as found by the arbitrator was such that it warranted dismissal, if it were not for the question of the time lag before the dismissal. On the day of the accident, the company suspended Neidrauer for three days pending the investigation in accordance with art. 10, para. 1, of the collective agreement. On October 19, 1978, the company completed its investigation, which included an interview with Neidrauer, and basically concluded that Neidrauer was at fault to such a degree as to warrant the termination of his employment. In what it believed to be a long-standing practice established orally between the union and the company when the company intended to discharge an employee involved in an accident, the company attempted to contact the employee and the union to give them a hearing to review and discuss the matter before the company took any action. On October 20, 1978, the company was unable to contact Neidrauer. However, it did contact the business agent of the union and advised him of its attempt to contact Neidrauer and the purpose therefor. The business agent agreed to attempt to arrange a meeting for the purpose of discussing the results of the investigation. Subsequently, the business agent contacted the company's representative and made arrangements to meet on October 26, 1978.

8     Because Neidrauer was a broker and used his own equipment and such equipment was inoperable, there was no additional suspension given to Neidrauer.

9     The meeting took place on October 26, 1978, at which time Neidrauer and the union representative were invited to provide any information which they possessed and to comment on the company's intended action. At the conclusion of the meeting, the company advised Neidrauer and the union representative of the results of the company's investigation and the company's decision that Neidrauer was to be discharged immediately. No issue was raised at that time with respect to the company's failure to abide by the time limit in the collective agreement. This issue was not raised until during the course of the arbitration hearing. On October 26, 1978, following the meeting, the company wrote to Neidrauer with a copy to the union advising them of the termination of Neidrauer's employment. Later, on the same day, Neidrauer filed the grievance in question which was denied by the company and ultimately reached arbitration.

10     At the opening of the arbitration hearing, on the request of the chairman, the parties agreed that the board had jurisdiction to proceed to hear the grievance on its merits. It was only at the close of the company's case before the board that counsel for the union moved that the board had no jurisdiction to hear the case by reason of the failure of the company to comply with the notice provisions of art. 25, para. 1. It was alleged by counsel for the applicants that the information that the company had on October 19th, and its basic conclusion that Neidrauer was so at fault as to justify his discharge, only became known to them at the time of the arbitration. The chairman, in his award, dismissed the motion on the grounds that there was no merit thereto.

11     In this Court, the parties agreed that, notwithstanding the death of the company's nominee, the chairman had the power to make an award. While the union nominee had indicated that he would abide by the chairman's decision even though he disagreed with it, he did so no doubt by virtue of the provisions of s. 157.1 [enacted 1977-78, c. 27, s. 56] of the Canada Labour Code, R.S.C. 1970, c. L-1, which provides as follows:

157.1. Where a difference described in subsection 155(1) is submitted to an arbitration board, the decision of a majority of those comprising the board is the decision of the board, but if a majority of those comprising the board cannot agree on a decision, the decision of the chairman of the board is the decision of the board.

12     The attack on the award with respect to natural justice relates to the alleged failure of the chairman to consult with counsel for the union as to the procedure to be followed as a result of the death of the company's nominee to the board and to the discussions between the chairman, the union nominee and counsel for the company in the absence of counsel for the union. There is no evidence to indicate that these discussions in any way affected the substance of the chairman's award. I find that prior to the issuance of the award, the chairman advised counsel for the union of these proceedings and discussions and indicated that he intended to make an award. Through no fault of the chairman, the union made no respresentations or objections prior to his making the award. In view of the prior position stated by the union nominee by the board, I see no reason why the chairman needed to consult him further. In addition, s. 157.1 clearly gave the chairman the power to make the award that he did. There being no evidence to indiate any bias or the fact that the informal discussions in any way affected the substance of the award, and the union making no objections or raising no comments prior to the award as to this procedure, I find that there was no denial of natural justice and therefore this ground of attack on the award must fail.

13     I turn now to the more serious issue of the jurisdiction of the board to make the award.

14     There can be no question of the issue of natural justice with respect to the inquiry and the termination of the employment by the company. If the company failed in complying with the terms of the agreement by not giving proper notice, it was because it attempted to give a fuller and fairer hearing than the written agreement provided for.

15     This collective agreement is subject to the provisions of the Canada Labour Code, which includes the following provisions:

156(1) Every order or decision of an arbitrator or arbitration board is final and shall not be questioned or reviewed by any court.

(2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an arbitrator or arbitration board in any of his or its proceedings under this Part. [re-enacted 1972, c. 18, s. 1; am. 1977-78, c. 27, s. 53]

. . . . .

157. An arbitrator or arbitration board

(a) shall determine his or its own procedure, but shall give full opportunity to the parties to the proceeding to present evidence and make submissions to him or it;

(b) has, in relation to any proceeding before him or it, the powers conferred on the Board, in relation to any proceeding before the Board, by paragraphs 118(a), (b) and (c);

(c) has power to determine any question as to whether a matter referred to him or it is arbitrable ... [am. ibid., s. 55]

16     The issue before the Court is, simply, was there jurisdiction in the arbitrator to make the decision he did? Clearly, he had the right to be wrong in his interpretation of the agreement, but did he have jurisdiction?

17     The arbitrator found that only the grievance as to the unjust discharge had been submitted to arbitration, and that the issue of the timeliness of the penalty or notice was not. From the facts previously recited, the issue of timeliness was not clearly raised until during the arbitration hearing, and the arbitrator, in his reasons, found that the wording of the grievance itself, that was filed, had not raised the issue. This finding is not reviewable by this Court because of the provisions of ss. 156 and 157(c) of the Canada Labour Code.

18     It was argued in this Court that the wording of the agreement that provided that an untimely notice is "null and void" precludes any proceedings at all, and precludes the necessity of an employee from even grieving the issue. It was submitted that the arbitrator had clearly exceeded his jurisdiction by ignoring the words, "null and void", with respect to the timeliness of the notice, and thereby had given an interpretation to the agreement that it could not reasonably bear.

19     Article 3.1 of the agreement gives management the exclusive right to discharge employees. This is so at common law and without an agreement at all. This right, however, is qualified by art. 3.2, which gives the employee the right to grieve under the agreement. I am of the opinion that any question as to the interpretation of the agreement must be the subject-matter of a grievance, and that an employee cannot look to a term of the agreement and say that it precludes any need to grieve. This procedure is clearly referred to in art. 6.1 of the agreement. The arbitrator having dealt with the matter, it is not open to review by the Court. The following statement at p. 610 O.R., p. 568 D.L.R. in Re Hunter Rose Co. Ltd. and Graphic Arts Int'l Union Local 28B et al. (1979), 24 O.R. (2d) 608, 99 D.L.R. (3d) 566, 79 C.L.L.C. 15,299 (C.A.), is applicable:

It is to be observed that the arbitration clause above referred to confers upon the board of arbitration the right to determine, where the issue is raised, the question as to whether the matter referred to is arbitrable. Where the parties have agreed that an issue will be decided by a board of arbitration, in my opinion, and with respect to the contrary view, the Court cannot pre-empt the determination of that issue. By reason of the conduct of the parties, the board of arbitration was not called upon to consider whether the grievance was arbitrable, and it was not open to the Divisional Court to determine the matter initially.

20     In the present case, the arbitrator dealt with the issue and, therefore, to a greater extent, it is not for the Court to interfere and interpret terms of the agreement.

21     We were referred to cases relating to the nullity of Court proceedings. I am of the opinion that such are not applicable because their foundations were not upon the words of a collective agreement. In addition, we are not faced with an interpretation of the mandatory wording relating to notice within the terms of this agreement, because we deal only with the issue of whether or not the matter was properly brought to a grievance. The arbitrator having found that it was not, it is not open to this Court to review such decision.

22     For the above reasons, the application should be dismissed with costs.

Application dismissed.