Case Comment: Legal timelines run whether the Employer – or the Union – wants them to or not

Case Comment: Legal timelines run whether the Employer – or the Union – wants them to or not

A variety of different clocks
A variety of different clocks

In any Collective Agreement, the grievance procedure will include required steps and timelines for those steps.  Employers love to make technical legal arguments and try to avoid dealing with the real problem a worker is raising at the heart of a grievance.  It’s important for the Union to stay on our toes about procedures, as this OPS case illustrates.

Two group grievances out of the OPS were filed about harassment in the workplace, this first hearing day was dedicated to the Employer’s preliminary motion on timeliness.  Rather than an allegation that we were late, the Employer in this case made an argument that the Union   referred the grievance to arbitration too early, or “prematurely”.

The Employer in this case failed to hold a “Formal Resolution Stage Meeting” or an “FRSM”. This meeting is required by the Collective Agreement and the parties are obligated to participate. After the Employer failed to hold the meeting within the mandatory timeframe, they attempted to schedule the meeting late, and tried to unilaterally extend the timelines in the Collective Agreement.  The Local and Grievors declined to extend the time limits and responded by forwarding the grievance to arbitration.

When the Employer holds a Formal Resolution Stage Meeting (or “FRSM”) under the OPS Collective Agreement, they have 7 days to issue their decision. In this case they argued that even where they failed in their obligations and breached the Collective Agreement by failing to hold a meeting, that the Union nonetheless had to wait the 7 days before referring the grievance to arbitration.

This argument flew the in face of a long history of caselaw at the GSB that required the Union to move to the next step in the Grievance or Arbitration process when the Employer fails in their obligations to hold meetings, and it was, ultimately, unsuccessful. The Arbitrator ruled:

Applying the reasoning in its case law to the facts here, as soon as the 15-day mandatory time limit elapsed on November 1st, 2022, and no FRS meeting had been held, the grievance procedure had ended with no settlement of the grievances, the clock began to run for the mandatory 15- day time limit the grievor had under article 22.6.1 to refer them to arbitration. By referring the grievances to the GSB on November 7th, the grievor met that mandatory time limit.

Notably in this case, the Arbitrator made findings that the Employer in fact breached the Collective Agreement in failing to hold the meeting.

Based on the ASF and the facts presented during submissions it is clear, and I find, that no FRS meeting was held, within the 15 days mandatory time limit from the receipt of the grievances by the employer or at any time. Therefore, the employer did not comply with that mandatory obligation under article 22.3.

The employer did not put forward any specific facts to explain or excuse its non-compliance. Even if it did, that would not have relieved it from the mandatory time limit. If it had good reasons that made it difficult to meet the time limit, it ought to have presented those to the union before the time limit expired and sought its agreement to extend the deadline under article 22.14.3. Instead, it let the deadline pass without doing anything, and then scheduled a FRS meeting on a date of its own choosing which was beyond the deadline.

The Employer’s motion was dismissed and the grievances moved forward.

This case was distinguished from other cases in which the Union or the Grievor made it difficult or impossible to hold an FRS Meeting; in those cases the Employer was found to be in the right, and the Board found that the Union had not complied with the Collective Agreement.

This cases builds on the case law that tells us that the time limits in a Collective Agreement are extremely important and can completely derail an otherwise strong grievance – it is important to take them seriously and for us to ensure that the grievance moves through the process as it is outlined, whether the Employer is cooperative or not.

Other Contract Enforcement Blawg posts