In TC, Local 213 and Wolseley Canada Inc (“Wolseley”), the arbitrator enforced a collective agreement’s time limit clause to dismiss an untimely grievance.^[1] This decision is a rare example of an employer successfully enforcing timeliness obligations to dismiss a late grievance and overcome the obstacle of having the grievance characterized as a “continuing contravention” (i.e., the employer’s contravention of a collective agreement is continuous and thus the grievance is not subject to timeliness requirements).

The Facts

Wolseley Canada Inc. (the “Employer”) is the Canadian operating subsidiary of Ferguson plc, and provides various products and services to trade professionals across Canada and in British Columbia, including plumbing, heating, ventilation, air conditioning and refrigeration (HVAC/R), fire protection, and waterworks. Five of the Employer’s plumbing locations in British Columbia’s lower mainland are unionized, with those unionized workers represented by the Teamsters Local 213 (the “Union”). The rest of the Employer’s British Columbia locations are non-unionized.

The Employer entered the Canadian market in 2001 by purchasing the plumbing, HVAC/R, fire protection and waterworks operations, including many of its existing branches in British Columbia, from a prior employer, Westburne. The Union first certified some of Westburne’s employees in 1973. By 1974, the bargaining unit description included “all employees in BC, except office and sales staff”. Despite this language, the Union and Westburne agreed that several locations would remain non-union, and the scope of the bargaining unit was limited to British Columbia’s lower mainland. As Westburne expanded its operations, the Union did not attempt to bring employees at several new locations into the bargaining unit, nor did the Union make any such proposal for many years following. After the purchase of Westburne, the Employer slowly consolidated the British Columbia locations and eventually branded all of its branches in the lower mainland under the “Wolseley Canada” banner.

In 2020, a new round of collective bargaining began. On October 8, 2020, the Union suggested it would pursue a grievance to include several non-unionized locations in the bargaining unit. On November 27, 2020, the Union filed a grievance claiming the Employer breached and continued to breach the Collective Agreement by failing to provide coverage to certain Employer locations following the rebranding initiative (the “Grievance”). Despite being historically owned and operated by the Employer (and prior to its ownership, Westburne), two of these locations had previously operated under the trade names “Cronkhite Supply” and/or “Nicholson Sales”. The Union claimed that the change in branding from “Cronkhite Supply” / “Nicholson Sales” to “Wolseley Canada” brought the non-unionized employees within the scope and recognition clause of the Collective Agreement, but that it was unaware of the timing of the rebranding initiative.

The Employer advanced a preliminary objection seeking a dismissal of the Grievance for untimely filing by the Union, among other grounds. The provision in the Collective Agreement governing timeline is as follows:

…Any grievance which is not presented within ten (10) days following the event giving rise to such grievance shall be forfeited and waived…

The Employer argued that the Union knew or ought to have known that these locations were non-unionized and did nothing for years to address their exclusion from the bargaining unit. In response, the Union characterized the Grievance as a “continuing contravention” and thus the Grievance was not bound by time limits. The Union contended the Grievance involved ongoing, repetitive breaches whereby each day the locations were open, the Employer failed to recognize the Union as the bargaining agent of the employees and provide the employees the benefits of the Collective Agreement. Alternatively, the Union requested the arbitrator to relieve the Union from its timeliness obligations – a discretionary power given to arbitrators under s. 89(e) of the B.C. Labour Relations Code.^[2] In reply, the Employer contended that the real substance of the Grievance was not whether the employees were excluded from the bargaining unit, but whether point-in-time changes in the character of the locations swept previously non-unionized employees at those locations into the bargaining unit such that there was a singular contravention with continuing consequences.

The Decision

The arbitrator agreed with the Employer that the real substance of the dispute was the act of rebranding, an event that occurred long before the Union filed the Grievance. Consequently, the arbitrator did not accept the Union’s characterization of the Grievance as “continuing”.

The evidence demonstrated that the rebranding of the “Cronkhite Supply” and/or “Nicholson Sales” locations happened a year or more before the Grievance, and that the Union knew or ought to have known about this change, and in fact knew or ought to have known about the Employer’s ownership of the “Cronkhite Supply” / “Nicholson Sales” locations, well before issuing the Grievance. Moreover, the arbitrator concluded that the branding changes must have happened before the 2020 collective bargaining process began, and that the employee shop stewards would have known the date of such change. Overall, the Union presented no evidence or explanation as to why it did not know or could not reasonably have known of the timing of the rebranding initiative.^[3] This put all contraventions long past the ten day time limit specified in the Collective Agreement.

Given the untimeliness of the Grievance, the arbitrator applied the Collective Agreement’s time limit clause and dismissed the Grievance. The arbitrator found no basis to grant s.89(e) relief from the Union’s breach of a time limit “expressed clearly and forcefully” in the Collective Agreement.^[4]

Applications for Review and Leave and Reconsideration Dismissed

The Union applied to the British Columbia Labour Relations Board (the “Board”) for a review of the arbitral decision, arguing it was denied a fair hearing because the arbitrator failed to consider its main argument that the grievance was of a continuing nature, made factual determinations unsupported by the evidence, and it was held to an impossible standard because it had only ten days to grieve when a store was rebranded even if it was unaware of the rebranding. A Vice-Chair of the Board disagreed with the Union, holding that the arbitrator was alive to the Union’s main argument because the result of the arbitral award implied that the arbitrator rejected the Union’s “continuing grievance” argument and that the arbitrator did not make any factual errors that were palpable and overriding to the award.^[5] In addition, the Board found that the Union’s argument that it was held to an impossible standard was an attempt to impugn the correctness of the arbitrator’s interpretation of the Collective Agreement by appealing to the consequences of his interpretation.

The Union further applied for leave and reconsideration of the Board’s decision dismissing its review application, arguing that the arbitral award did not implicitly reject the Union’s main argument. A three-member panel of the Board agreed with the Vice-Chair, finding that the arbitrator’s analysis and conclusion necessarily implied a rejection of the Union’s theory that the Grievance was continuous.^[6] The Board concluded the Union’s application did not raise a serious question as to the correctness or fairness of the Vice Chair’s decision and accordingly dismissed the Union’s application.

Significance of the Decision and Takeaways for Employers

For employers, the Wolseley decision is a rare instance of a British Columbia arbitrator characterizing the exclusion of employees from a bargaining unit as a single contravention and applying a time limit in a collective agreement to dismiss a grievance.

Often unions will argue an employer’s contravention is “continuing” to avoid timeliness obligations. For example, in Cariboo-Chilcotin Family Resources Ltd. v. British Columbia Government & Service Employees' Union (“Cariboo”),^[7] the arbitrator rejected the employer’s time limit argument where individuals were performing work within the scope of certification but without the benefits of the collective agreement – the arbitrator characterized the grievance as continuing, and determined that each day/shift the individuals worked without the benefit of the collective agreement was a reoccurrence of the alleged violation. The Cariboo approach to collective agreement interpretation, by characterizing such grievances as “continuing”, acts as an escape valve for unions to avoid their timeliness obligations under the collective agreement, to the detriment of employers.^[8]

However, the Wolseley decision shows that where the real substance of the dispute is jurisdictional and concerns point-in-time changes by an employer, then grievances can be properly framed as a single, as opposed to a continuing, contravention. In Wolseley, this allowed the arbitrator to apply the clear and forceful language of the Collective Agreement to bar the Grievance as untimely. While not expressly adopted in the arbitrator’s reasons, Wolseley appears to be one of few reported British Columbia arbitration decisions to at least implicitly reflect the Ontario Court of Appeal’s decision in UGCW, Local 246 v. Dominion Glass Co. (“Dominion Glass”),^[9] which upheld an arbitration board’s determination that an employer who excluded employees from a bargaining unit, even though those employees were doing bargaining unit work, did not amount to a “continuing” contravention.

The Wolseley decision – and the dismissal of the two subsequent challenges to that decision – is welcome news for British Columbia employers seeking to rely on mandatory timelines to prohibit the advancement of an untimely grievance aimed at expanding the scope and application of a collective agreement.

[1]Teamsters Local Union No 213 v Wolseley Canada Inc, 2021 CanLII 46958 [Wolseley].

[2] RSBC 1996, c 244, s 89(e).

[3]Wolseley, supra note 1 at paras 86 – 93.

[4]Ibid at para 94.

[5]Wolseley Plumbing BC, A Division of Wolseley Canada Inc v Teamsters Local Union No 213, 2021 BCLRB 152.

[6]Wolseley Plumbing BC, A Division of Wolseley Canada Inc v Teamsters Local Union No 213, 2022 BCLRB 1.

[7] [2004] B.C.C.A.A.A. No. 51.

[8] See also British Columbia Buildings Corp. v British Columbia Government and Service Employees' Union (Nerada Grievance) [2002] B.C.C.A.A.A. No. 89 at para 30.

[9]UGCW, Local 246 v Dominion Glass Co, 1973 CarswellOnt 893 (ONCA).