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Consider this scenario: a union discovers that the employer has been shortchanging the members for 8 years, through 3 collective agreements. It grieves, seeking damages for breaches not only of the current agreement, but also of 2 predecessor agreements. Can it recover anything for the breaches of those earlier agreements?

Under an early but now discredited theory, the answer was “no”, because the negotiation of a renewal agreement was deemed to notionally replace whatever rights existed under the previous agreement.

A second theory, still being applied, holds that the answer may depend on the way that the matter has been grieved. If a single grievance has been filed, under the current agreement alone, the arbitrator’s jurisdiction is limited to remedies for breaches of the current agreement only. Not having been appointed under the earlier agreements, he/she cannot remedy their breach.

A third theory, reflected in modern arbitral jurisprudence, focuses on the nature of the rights sought to be enforced under the previous collective agreements. If those rights qualify as “vested rights”, the union can still grieve their violation. Vested rights fall into two categories.

“Strong” vested rights (also known as “true vested” rights) are those that, once granted in a collective agreement, cannot be taken away in subsequent collective bargaining. Retiree benefits are one example. Retirees no longer belong to the bargaining unit, so they have lost their ability to influence the union’s bargaining agenda. As a result, retiree benefits are sometimes seen as vesting in the retirees themselves, immune from being bargained away later. If the union today discovers a denial of such “strong” vested rights, the denial can still be grieved under previous collective agreements.

“Weak” vested rights (also known as “accrued” rights) are rights created in a previous collective agreement that could have been, but have not been, bargained away or modified in subsequent negotiations. Most rights fall into this category. If the union today discovers a denial of an “accrued” right, the denial can still be grieved under the previous collective agreements. In this scenario, the arbitrator will be required to interpret not only the expired agreement that created the right, but also subsequent agreements to see if the right has been bargained away or modified.

Time limits on filing grievances continue to apply whether the rights being asserted are “true vested” versus “accrued” rights. Accordingly, the union must act following its discovery of the breach by either complying with the contractual time limit in the applicable collective agreement, or obtaining an extension from the arbitrator.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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