7b:I[968242,["/_next/static/chunks/0b_72f-e25kv0.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/2dqzcpp0iv_65.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/2-gzvss-l6hsb.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/0_th5qbdbp7fv.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/3pxtaj7c8rs55.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/1fr-v8sx5ap_7.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/2_zpbictxcli5.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/2yad5-4ibvk0m.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/0rilgbl3o5bv-.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/21ewgwknlgeas.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/2ov37zop16n27.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/0tof0ca8-y5uc.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/3sl10ogzeq_4f.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/1oye9k9wdtez4.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/2qpeh4lw4hds4.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/23d_j_uhqaepb.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/2qthtgzpqespl.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/1o37bbh4k8kg0.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/1l1-kbc27ddmr.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/06sx6w4g9hwyu.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/3abc7e_uryvi3.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/0257p7bsqes76.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/0hfvn4ww_ph62.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/15-zu1noqxrht.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/0ovufyqn1ws-o.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/08dzzn4r58_fn.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/0ce8qgl2n3g61.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD","/_next/static/chunks/3au34nv6rkr0s.js?dpl=dpl_EiXZRHqTZh6mfBHjnDZn1DCbRhsD"],"SidebarDataSetter"] 7c:T10c52,GSB#2010-2210 Union# G-61-08 ## IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD # BETWEEN Amalgamated Transit Union - Local 1587 (Union) ## Union - and - The Crown in Right of Ontario (Metrolinx - GO Transit) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Ian Fellows Ursel Phillips Fellows Hopkinson LLP Barristers and Solicitors Counsel Kassia Bonisteel Ursel Phillips Fellows Hopkinson LLP Barristers and Solicitors Counsel FOR THE EMPLOYER Glenn Christie Hicks Morley Hamilton Stewart Storie LLP Barristers and Solicitors Counsel HEARING November 15, 2012, January 8 & 10, November 22, 2013, January 9 & 17, April 25, July 8, 2014 Decision [1] The union has filed a policy grievance dated June 16, 2008, alleging that the employer has failed to recognize a number of positions as falling within the bargaining unit it represents. Subsequently the parties narrowed down the list of positions in dispute. While the grievance is about whether or not these positions are included within the bargaining unit, the parties agreed that the Board should initially render a decision on the proper interpretation of the recognition clause and remain seized. [2] The Recognition Clause, article 2.1 reads: The Employer recognizes the Union as the exclusive bargaining agent for all employees of the Employer employed in the Province of Ontario as specified in Schedule “A1” and “A2”, or as developed through the application of Article 9, save and except supervisors and persons about the rank of supervisor, office and technical staff (save and except classifications specified in Schedule “A1” and “A2), employees represented by the International Association of Machinists and Aerospace Workers, Local 235 as of January 2, 2002, students, and persons excluded by the Crown Employees Collective Bargaining Ac, 1993. The parties also made reference to article 9.4, the relevant part of which reads: The Employer shall notify the Union when a new ATU position has been created and shall present a copy of the relevant job description to the Union. The job shall be evaluated in accordance with Article 9.4(2), 3.2, and it shall include a job rate applicable to Schedule “A1” or “A2”. In the event that the new job is posted and filled without having first been evaluated in accordance with Article 9.4(2), 3.2, the position will be filled and the employee assigned a job rate in Schedule “A1” or “A2”. Should the evaluation be greater than the assigned rate, the employee will receive full retroactive pay from the date hired in the new classification. [3] There are two areas of disagreement about the interpretation of article 2.1. First, the union claims that it represents an “all employee” bargaining unit, subject only to the specified exclusions set out in the article. It takes the position that it clearly states that the employer recognizes the union as exclusive bargaining agent “for all employees of the employer employed in the Province of Ontario”, and those words represent an all employee unit. In the alternative, the union submits that, if the Board finds article 2.1 to be ambiguous, evidence relating to negotiating history and past practice would establish that the intention of the parties was to create an all employee unit. In the further alternative, it is submitted that the employer is in any event estopped from asserting that the bargaining unit is not an all employee unit. [4] The employer submits that the union’s interpretation is based on only part of article 2.1, ignoring qualifying words that follow. The recognition is for a unit of all employees of the employer “as specified in Schedule “A1” and “A2”, or as developed through the application of Article 9”. The union’s interpretation ignores and reads out these words from the bargaining unit description. Given the language, the employer asserts that only employees in classifications listed in the two schedules are included. Any new positions created that do not fit within one of the schedules are outside the scope of the bargaining unit. Similarly, newly created positions developed through article 9 are excluded unless they are listed in the schedules or represent a re-packaging of existing positions listed in the schedules. In essence, the employer’s interpretation is that the bargaining unit recognized is one limited to classifications listed in the schedules. It submits that article 2.1 is clear and unambiguous. It denies that evidence relating to the negotiating history or past practice supports the union’s interpretation in any event. It asserts that the evidence is consistent with the language in article 2.1 read in its entirety. The employer denies that it made any representation that it was agreeing to an all employee bargaining unit, and submits that there is no basis for an estoppel. [5] The second dispute relating to article 2.1 is about the exclusion of “office and technical staff (save and except classifications specified in Schedules “A1” and “A2”)”. The union takes the position that there was no intention or agreement to exclude office and technical employees, and that this language was included as a result of a mistake. It submits that in the circumstances the Board should rectify the mistake and incorporate the actual agreement arrived at between the parties. In the alternative, the union argues that the employer is estopped from asserting that office and technical employees are excluded. [6] The employer submits that there was no mistake, mutual or otherwise. The union agreed to the language, but has had second thoughts. The union is not entitled to resile from clear language it agreed to merely because it now believes it made a wrong decision. The employer again denies that it made any representations that could give rise to an estoppel. [7] Schedule “A-1” is a listing of position titles and applicable wage rates, from the start rate to the maximum rate, for each position. Schedule “A-2” is a list of office and technical positions, with the applicable pay level for each position. There is no dispute that these schedules form part of the collective agreement. Both the union and the employer argued that article 2.1 was clear and unambiguous in favour of their respective interpretations. However, extrinsic evidence on negotiating history and past practice was adduced without objection as an aid to the proper interpretation of the collective agreement, as well as it related to the estoppel and rectification issues. The Recognition Clause – Is it an all employee bargaining unit? [8] Extrinsic evidence may properly be admitted for the purpose of interpretation only if there is patent or latent ambiguity. The first part of the provision is typical language of an “all employee” bargaining unit description, that is, “all employees of the Employer employed in the Province of Ontario”. The typical all employee recognition clause follows with a “save and except” listing of exceptions to the all employee unit. Article 2.1 includes the typical “all employee” language and a listing of exceptions following the phrase “save and except”. If these were the only words used, the Board’s task would be fairly straightforward. It must determine whether the position in dispute falls within one or more of the exceptions enumerated. If a position fits into an exception it is excluded. All positions that do not fit within a specified exclusion would be within the bargaining unit. While article 2.1 includes the typical “all employee” and “save and except” language, it includes some additional words. The “all employees” language is qualified by the words “as specified in Schedule “A1” and “A2”, or as developed through the application of Article 9”. But for these additional words, article 2.1 is a typical “all employee” bargaining unit. As the authors of Brown & Beatty, Canadian Labour Arbitration (4^th Ed) at 4:2100 observe “the fundamental object in construing the terms of a collective agreement is to discover the intention of the parties who agreed to it”. Reviewing case law, they go on to state, “Accordingly, in determining the intention of the parties, the cardinal principle is that the parties are assumed to have intended what they have said, and that the meaning of the collective agreement is to be sought in its express provisions”. A further principle in interpreting a collective agreement is that it should be presumed that all of the words used were intended to have some meaning. It is not appropriate to interpret a provision which would have the result of rendering some words used superfluous. Re H.Y. Lovie Co. (2012), 228 L.A.C. (4^th) 94 (Moore). [9] Therefore, the Board’s task is to apply the foregoing principles to ascertain the intention of the parties when they added the words “as specified in Schedule “A1” and “A2”, or as developed through the application of Article 9”. In doing so, the language must be read in its entirety, and must be viewed in its normal and ordinary sense, unless that leads to an absurdity. Moreover, where there is no ambiguity in meaning, the language must be given effect to, regardless of the Board’s opinion on the fairness of the result. The initial obligation on the Board is to see if meaning could be given to the expressed language in article 2.1. If that is possible, it must be assumed that the parties intended what they have agreed to. [10] Counsel for the union submitted that if the intention was to limit the bargaining unit to specific classifications, the parties would have simply stated that the union represents only those employed in the classifications listed in Schedules “A1” and “A2”. Instead they have referred to “all employees of the Employer employed in Ontario”. Counsel submitted that accepting the employer’s interpretation that article 2.1 represents a classification based unit would render those words superfluous. He submitted that the additional words “As specified in Schedule “A1” and “A2” were included merely as a “snap shot” of the employees that would be included in the bargaining unit at the time. He pointed out that article 2.1 also refers to positions “developed through the application of article 9”. Article 9.4 contemplates the addition of newly created positions to the unit. That provision would be inconsistent with the notion that the bargaining unit is a static one limited to specific classifications. [11] Counsel argued that if the Board determines that article 2.1 is capable of being interpreted in the manner urged by either party, the union’s interpretation ought to be preferred. Reference was made to the following passage from Brown & Beatty, Canadian Labour Arbitration at 4:2100: When faced with a choice between two linguistically permissible interpretations, however, arbitrators have been guided by the purpose of the particular provision, the reasonableness of each possible interpretation, administrative feasibility, and whether one of the possible interpretations would give rise to anomalies. (foot-notes omitted) It was argued that the union’s interpretation was more reasonable because it is consistent with the bargaining unit found by the Ontario Labour Relations Board to be appropriate. He submitted that a requirement to determine whether newly created positions are sufficiently similar to a classification or position listed in the schedules to be included in the unit is a recipe for confusion and dispute. The union’s interpretation is thus more administratively feasible. He submitted that the employer’s interpretation results in further fragmentation of the employer’s work force. There will be separate bargaining units for the ATU and the International Association of Machinists. There will be a group of employees excluded from both of those units. That leaves a number of employees who are eligible to be unionized, but not in any bargaining unit. This would add to the difficulties in administering. Counsel referred to the following observation n Re Salvation Army Meighen Health Centre (2010), 101 C.L.A.S. 290 (Burkett) at para 15: For sound labour relations policy reasons, there is a predisposition against the undue fragmentation of bargaining units. For this reason, a broad rather than narrow community of interest test is applied by the Labour Board in defining appropriate bargaining units. [12] The union relied on [Re Budd Automotive Co. (1967) ](https://www.minicounsel.ca/olaa/1967/1051), 18 L.A.C. 296 (O’Shea) as directly applicable. There the recognition clause stated: The Company hereby recognizes the Union as the sole and exclusive bargaining agent for all its employees in its plant(s) in the City of Kitchener, in the Province of Ontario in the determination of rates of pay, wages, hours of work and all other working conditions. The scope of the bargaining unit will be as outlined in Appendix ‘A’ which is part of this Agreement. Should any dispute arise as a result of the introduction by the Company of any additional classifications or changes in classifications not provided for in Appendix ‘A’, the dispute may be referred to the grievance procedure starting at step number three (3). The grievance related to the employer’s decision to exclude persons classified by it as quality control technicians and layout technicians. The union took the position that those persons perform functions which should be performed by employees in the bargaining unit. Appendix A referred to in the recognition clause did not include the Quality Control Technician or Layout Technician classifications. The employer’s position was that, “… since neither classification appeared in the list of classifications in app. A, because the union had agreed to their exclusion during bargaining and because the company considers these classifications to be part of the “management audit group”, they do not belong in the bargaining unit” (p. 298). At p. 299-300 the arbitrator wrote: Article 1 of the collective agreement states that the scope of the “all employee” bargaining unit represented by the union will be as outlined in App A. The operative word in this instance is “outlined”. If the parties had meant to limit or confine the scope of the bargaining unit to the specific classifications set out in app. A, it would have been an easy matter so to state. It appears, however, that this was not the intention of the parties since the article goes on to provide a method of settling any dispute which might arise as a result of the introduction by the company of any additional classification or changes in classifications not provided for in app. A. [13] Union counsel also drew the Board’s attention to case law in support of the proposition that “… recognition clauses, especially “all employee” units with explicit exclusions, are to be read restrictively”. Huntsville District Nursing Home Inc., (2014) 118 C.L.A.S. 74 (Randall). The Board was urged to interpret article 2.1 restrictively, and not limit the bargaining unit to classifications listed in the schedules and similar positions. [14] Employer counsel stated that some 12 years ago the union agreed to language which is clear and unambiguous, and has now decided that the language is not in its favour any longer. Now it is arguing that the provision does not mean what it clearly says. Counsel submitted that the union’s position may be upheld only by ignoring a significant part of the recognition clause. He pointed out that article 2.1 is one sentence. That sentence must be read as a whole. It refers to “all employees as specified in the two schedules”. The language used is “as specified in”. The union’s interpretation would require the Board to replace the words “as specified in”, with words such as “for example” or “including”. He submitted that the language in article 2.1 is clear. One simply needs to ask “Is the position specified in the schedules or was it developed through the application of article 9?” If the answer is “yes”, it is included in the bargaining unit. If not, the position is excluded. Meaning can be given to the provision without torturing the language. [15] Evidence was adduced relating to the evolution of the present recognition clause. In the collective agreement, April 3, 1999 to October 27, 2000, it read: 1.1 The Employer recognizes the Union as the exclusive bargaining agent for all employees of the Employer employed in the Province of Ontario as specified in scheduled “E-II”, or as developed through the application of Article 9, save and except supervisors and persons above the rank of supervisor, office and technical staff, and persons excluded by the Ontario Labour Relations Act, as amended 1995. In the next collective agreement, October 27, 2000 to July 27, 2003, the recognition clause read: 2.1 The Employer recognizes the Union as the exclusive bargaining agent for all employees of the Employer employed in the Province of Ontario as specified in Schedule “A”, or as developed through the application of Article 9, save and except supervisors and persons above the rank of supervisor, office and technical staff (save and except classifications specified in Schedule “A”), and persons excluded by the Ontario Labour Relations Act, as amended 1995. [16] During the term of that agreement the employer was “down-loaded” from the province to the municipal level. The new employer voluntarily recognized the union and the collective agreement continued to apply. Some two years later, however, the employer was again “uploaded” to the province, and became a crown agency. Labour relations became subject to the Crown Employees Collective Bargaining Act, and the union’s representation rights and the collective agreement came to an end. The Province demanded concessions in return for voluntary recognition. The union refused, and instead applied for certification seeking an “all employee” unit. The employer vehemently opposed the inclusion of office and technical staff. Ultimately, however, an all employee unit was agreed to. That led to a decision dated February 28, 2002 by the OLRB, para. 1 of which read: Having regard to the agreement of the parties, the Board further finds that: All employees of GO Transit employed in the Province of Ontario, save and except supervisors and persons above the rank of supervisor, employees in bargaining units represented by the International Association of Machinist and Aerospace Workers, Local 235 as of January 2, 2002 and persons excluded by the Crown Employees Collective Bargaining Act, constitute a unit of employees of the responding party appropriate for collective bargaining. [17] Following certification, the parties engaged in negotiations and executed Minutes of Settlement dated April 19, 2001 (“MOS”). They agreed to a term of January 1, 2002 to May 23, 2003, and to adopt the terms and conditions of the collective agreement that had been extinguished as a result the uploading, “provided that the following attached amendments and/or additions are incorporated”. A series of amendments and/or additions were set out in the MOS, including paragraph 7. [18] The evidence is that during negotiations a day earlier, on April 18, 2002, the parties had signed off as Appendix A, the following recognition clause. ARTICLE 2-RECOGNITION 2.1 Effective January 1, 2002, The Employer recognizes the Union as the exclusive bargaining agent for all employees of the Employer employed in the Province of Ontario as specified in Schedule A2, or as developed through the application of Article 9, save and except supervisors and persons above the rank of supervisor, employees represented by the International Association of Machinist and Aerospace Workers, Local 235 as of January 2, 2002, persons excluded by the Crown Employees Collective Bargaining Act, 1993. Para. 7 of the MOS executed the next day read: 7. Article 2.1 – Recognition and other related provisions of the former Collective Agreement will be amended, as per Appendix A, to reflect the February 28, 2002 decision of the Ontario Labour Relations Board regarding certification and transition of GO Transit, for purposes related to labour relations, from the [Ontario Labour Relations Act, 1995](https://www.canlii.org/en/on/laws/stat/so-1995-c-1-sch-a/latest/so-1995-c-1-sch-a.html) to the Crown Employees Collective Bargaining Act, 1993. In purported implementation of the foregoing MOS, the parties included the following recognition clause in the collective agreement: 2.1 Effective January 1, 2002, The Employer recognized the union as the exclusive bargaining agent for all employees of the Employer employed in the Province of Ontario as specified in Schedule A2, or as developed through the application of Article 9, save and except supervisors and persons above the rank of supervisor, employees represented by the International Association of Machinist and Aerospace Workers, Local 235 as of January 2, 2002, persons excluded by the Crown Employees Collective Bargaining Act, 1993. [19] In the next collective agreement (May 24, 2003 to June 1, 2007), the recognition clause was amended. This amended clause was carried over to the collective agreement that followed (June 2, 2007 to June 1, 2011). That clause read: 2.1 The Employer recognizes the Union as the exclusive bargaining agent for all employees of the Employer employed in the Province of Ontario as specified in Schedule “A1” and “A2”, or as developed through the application of Article 9, save and except supervisors and persons above the rank of supervisor, office and technical staff (save and except classifications specified in Schedule “A1” and “A2”), employees represented by the International Association of Machinist and Aerospace Workers, Local 235 as of January 2, 2002, persons excluded by the Crown Employees Collective Bargaining Act, 1993. [20] It is apparent that starting with the collective agreement effective January 1, 2002, which followed the April 19, 2002 MOS the parties agreed to a recognition clause, which amended the bargaining unit description in the OLRB certificate, by the insertion of the additional words “as specified in Schedule A2, or as developed through the application of Article 9”. In the next collective agreement two further amendments were made to the language. First, instead of “as specified in Schedule “A2”, it now read “as specified in Schedule “A1” and “A2”. Second, the following words appear for the first time as part of the exclusions set out following the “save and except” language: “office and technical staff (save and except classifications specified in Schedule “A1” and “A2”). This language which continues in the instant collective agreement is the subject of the second dispute. [21] The Board agrees with employer counsel that the words “all employees of the employer” in article 2.1 must be read together with the rest of the sentence, including “as specified in schedule “A1” and “A2”. When that is done, the “all employees” language, in the Board’s view, is qualified by the words “as specified in”. The phrase “all employees” cannot be read separately from the rest of the sentence. To illustrate, if a provision reads “All employees of the employer who have more than 5 years of service shall be entitled to …”, the appearance of the words “all employees” is qualified by and made conditional on the latter phrase. Entitlement is limited to all employees who meet the 5 years of service requirement. That is the outcome on a plain reading of all of the words. [22] In Re Budd Automotive Co, (supra) the arbitrator observed that the operative word was “outlined”, and added that “If the parties had meant to limit or confine the scope of the bargaining unit to the specific classifications set out in App. A, it would have been an easy matter so to state”. From the fact that the article went on to set out a process to settle disputes arising as a result of changes made to existing classifications or creation of new classifications, he concluded that “it appears” that the parties did not intend to limit the bargaining unit to the specific classifications outlined in App. 1. The Board does not read the decision in Re Budd Automotive, as stating anything more than that the bargaining unit was not intended to be static since the article contemplated expansion of the unit, if and when existing classifications are changed or new classifications are created. On the evidence before him, he concluded that during collective bargaining, the union had agreed to exclude the two classifications in question, presumably because they were not “outlined” in App. 1. However he also concluded that there had been change in the two classifications since the execution of the collective agreement, and went on to resolve the dispute under the process set out in the article. In concluding that the classifications were included in the bargaining unit, at pp. 300-301, he wrote: In the circumstances of this case, it cannot be said that the quality control technician and the layout technicians are additional classifications. However, since the job descriptions were not made known to the union and since the jobs actually performed by them, during the period of negotiations, changed after the collective agreement was signed when the company commenced production, it can be said that there was a change in the classification after the collective agreement was signed. While the job descriptions were in existence at all relevant times, the persons employed in the classifications did not commence to perform all the duties described in the job descriptions until after the agreement had been entered into. Since information as to the job descriptions and future duties was not available to the union, the union cannot be bound by the fact that it agreed to the exclusion of the named classifications. It is obvious that there was no consensus between the parties with respect to the ultimate functions of the quality control technicians and layout technicians during negotiations for the collective agreement. The union, having based its understanding of the nature of the duties of the persons bearing the titles of quality control technicians and layout technicians on its experience with other manufacturers, especially the American parent of the company, and on the duties actually performed at that time by the persons whose classifications are in dispute, cannot be said to have agreed to exclude persons performing the inspection functions which experience now indicates are performed by persons in the disputed classifications. While this matter might have been settled during the course of bargaining for the collective agreement had the company produced for the union’s consideration the job descriptions of the classifications in dispute, I do not find that the fact the company failed to do so is evidence of bad faith bargaining on the part of the company. Experience tells us that job classifications and job titles are not necessarily indicative of the duties performed. The functions performed by persons carrying the same job titles in different companies sometimes bear little or no resemblance. From the evidence adduced I find that during bargaining, while both parties believed in good faith that they understood one another when they reached agreement to exclude the job classifications now in dispute, no agreement was in fact made because both parties had a different understanding of the duties and functions which were to be performed by the persons employed in the classifications of quality control technician and layout technician. For all the reasons set out above and especially because the actual duties performed by the persons employed in the job classifications in dispute changed after the collective agreement was signed, and because I find that the duties now performed are not managerial functions, I accordingly find that the grievance must succeed. [23] It is very clear that the arbitrator there did not read the article as an “all employee” unit, as the union here urges the Board to do. The parties had made provision to add classifications not listed in the appendix through an agreed upon process. Any dispute was subject to the right to file a grievance. He thus took jurisdiction under that process to determine the dispute that had arisen as a result of changes in the two classifications, and for the reasons set out ruled in favour of the union. [24] The present collective agreement in article 9 also sets out a process whereby positions not specified in the Schedules may be added to the bargaining unit, when “a new ATU position is created”. In that sense, it may be stated that the bargaining unit is not limited or confined to the specific classifications specified in the schedules. That is, where new positions are created, the scope of the bargaining unit has the potential to expand beyond the listed classifications. However, that can happen only where a new position is “developed through the application of article 9.” If Re Budd Automotive Co. (supra) is of relevance to the instant parties, it is to the extent that it has held that classification and position titles are not determinative, and that inclusion or exclusion must depend on actual duties performed. If that rationale is applied to the terms of the instant collective agreement, it may be open to argue that a particular title or classification assigned to a job is not dispositive. If a position with a title not listed in the schedules involves duties and responsibilities similar to duties and responsibilities of a position listed, it may be held to be included in the bargaining unit. That in essence is what the Board held in Re Budd Automotive Co. However, the exclusion/inclusion of particular positions is not an issue the Board is called upon to determine at this time, and no more will be said about that. [25] I conclude for the foregoing reasons that meaning can be given to the words expressed by the parties in article 2.1, and that there is no ambiguity, patent or latent. Therefore, it is not necessary to consider any extrinsic evidence. However, since the Board is called upon anyway to consider the extrinsic evidence in relation to the estoppel issue, I have considered whether or not that evidence is inconsistent with the interpretation of article 2.1 advocated by the employer. I find that there is no such inconsistency. The union’s argument is primarily based on para. 7 of the MOS dated April 19, 2002, set out supra at para. 17. It provides that article 2.1 and other related provisions of the former collective agreement will be amended “… as per appendix A to reflect the February 28, 2002 decision of the Ontario Labour Relations Board …”. The OLRB decision had found that an all employee bargaining unit was appropriate for collective bargaining. The union argues that a unit limited to classifications and positions specified in the schedules or developed under article 9 does not reflect the OLRB decision. Since the parties had intended that the amendments will reflect the OLRB decision, they would not have intended anything less than an all employee bargaining unit description in the recognition clause. [26] The evidence is that the day before the signing of the MOS, the parties had executed as Appendix A, the language for article 2.1 as it presently appears, including the reference to the schedules and article 9. The agreement in the MOS was not simply to amend the recognition clause in the former collective agreement to reflect the OLRB decision. The amendment was to reflect the OLRB decision as per Appendix A. The recognition clause in Appendix A (See para.17 supra) contains the words “as specified in schedule A2, or as developed through the application of article 9”. In the circumstances, it is not reasonable to assume, in the absence of some reliable evidence, that the parties went to the trouble of negotiating specific additional language making reference to the schedules and article 9, although the intention was that the recognition clause would reflect a bargaining unit exactly as described in the OLRB decision. If that was the case, it would have been a simple matter for them to incorporate the exact bargaining unit description in the OLRB decision. They have instead negotiated and included language different from that in the OLRB decision. That language must be given effect. [27] This reading of article 2.1, does not render the words “to reflect the OLRB decision” superfluous. The evidence is that the former collective agreement, which ceased to be in effect as a result of the “up-loading” of the employer to the province, contained a recognition clause which excluded “office and technical staff” as a class. Although the employer initially fought during the certification process to retain that exclusion, the bargaining unit in the OLRB decision did not include an “office and technical” exclusion. It is apparent that the former collective agreement was amended by the parties by deleting the general office and technical exclusion. To that extent, the recognition clause is amended to reflect the OLRB decision, since the OLRB decision also did not have an office and technical exclusion. [28] It is settled law that the terms of a negotiated recognition clause supersede the bargaining unit description in a labour board certificate. Thus in Re Sault Ste Marie Board of Education, [1974] 5. L.A.C. (2d0 179 (Shime) at pp. 181-182) it is written: While it is our understanding that the certificate granted would have included casual employees, we are also of the view that it is open to the parties during bargaining to enlarge or contract the scope of the bargaining unit as they see fit, but that once the parties enter into a collective agreement which defines the bargaining rights that the certificate is superseded by the collective agreement and bargaining rights extant are those contained in the most recent collective agreement. As the board stated in Canadian Union of Industrial Workers, Gilbarco Employees’ Union, and Gilbarco Canada Ltd., [1971] O.L.R.B. 155, at p. 157: In the same way as bargaining rights in a collective agreement supplant bargaining rights contained in a certificate so the bargaining rights in subsequent collective agreements may supplant bargaining rights contained in prior collective agreements. The parties are always free to incorporate the certificate into the collective agreement by specific reference, and in this way the original certificate will continue to define the scope of the bargaining unit. However, the parties in this case have not specifically incorporated by reference, the original certificate, and we therefore determine that the extent of the union’s bargaining rights must be found in the current collective agreement between the parties and that the board can only go behind the current collective agreement and rely on extrinsic evidence if there is some ambiguity in the current agreement. [29] While considerable evidence was adduced by witnesses from both sides, about the interaction that occurred during negotiations, that only indicates the respective understanding individuals had about the nature of the bargaining unit recognized in article 2.1. Union witnesses who were at the bargaining table testified that they believed the union obtained an all-employee unit. The employer witnesses had a different understanding about the scope of the bargaining unit agreed to. Thus, just 4 days after the bargaining concluded, a member of the employer negotiating team wrote a confidential memorandum to the employer’s Board of Directors, reporting inter alia, Recognition clause handled as a schedule to the agreement including a list of those positions included in the bargaining unit only. This is a very positive move for management because it limits the union’s ability to pick up any other classifications in future. [30] While union counsel argued that the language in article 2.1 making reference to the schedules and article 9 were intended merely to provide a “snap shot” of the positions that would be included in the union as of the signing date, there is no evidence to support that. There is no evidence at all of any discussion or exchange of proposals between the parties, that would disclose the intended purpose or meaning of the language “as specified in schedule “A1” and “A2” or as developed through the application of article 9”. [31] The evidence is clear that the Employer was vehemently opposed to the union having representation rights for an all employee unit. The employer’s agreement to an all employee unit for purposes of certification is not dispositive, since the law is clear that the unit found by the OLRB to be appropriate for collective bargaining does not automatically become the recognition clause. The recognition clause is open to be negotiated between the parties. Consistent with its objective of avoiding an all employee unit, the employer presented language altering the all employee description in the OLRB certificate, and the union signed off on that language. Despite that, the union in effect states that, with no discussion or inquiry, it assumed that the employer backed off from its objection, and agreed to an all employee unit. That defies logic and is not a reasonable conclusion to be reached from the evidence. I also do not find any evidence of past practice that would shed greater light on the meaning of those words that may alter the meaning resulting from a plain reading of article 2.1 in its entirety. [32] In light of the evidence, I further conclude that the union has not established that the employer made a representation that would lead to an estoppel. The union did not point to anything said or done during negotiations that could possibly amount to a representation that the employer was agreeing to an all employee unit. The bargaining unit recognized in article 2.1 is limited to all employees of the employer employed in Ontario who fit into schedules “A1” and “A2”, or were developed through the application of article 9. These employees are included in the bargaining unit, unless of course they come within an exclusion specified. Rectification of the Office and Technical exclusion [33] The undisputed evidence is that in the collective agreement that ceased to be operative when the employer was uploaded to the province, office and technical employees (hereinafter “O/T employees”) were explicitly excluded from the bargaining unit. (See para. 14 supra). When the union applied for certification it sought an “all employee” unit including that group. The employer strongly opposed the inclusion of O/T employees. Ultimately however, the Employer agreed to an all employee unit and the OLRB gave an all employee unit. As observed however, a bargaining unit found by the OLRB to be appropriate for collective bargaining does not become the recognition clause in the collective agreement. It is open to the parties negotiate and vary the scope of the bargaining unit. They may agree to exclude groups of employees who had been included by the OLRB, or extend union representation rights to groups of employees who had been excluded. The terms of the negotiated bargaining unit description supersede the one handed down by the OLRB. The question is, whether these parties agreed to a recognition clause which excluded O/T employees. [34] There is no question that on a plain reading of article 2.1 as presently found, there is a general exclusion of O/T employees. However, the union takes the position that the insertion of that exclusion was the result of a mistake, and that there was no agreement between the parties to do so. On that basis, the union requests that the Board exercise its power of rectification to reflect the actual agreement reached by the parties. [35] Witnesses from both the union and the employer were unanimous that when presenting drafts of agreed upon language during collective bargaining, the employer did the drafting, and that in doing so, there was an established practice of striking a line across words agreed to be deleted from the existing language, and underlining words agreed to be added to existing language. This enabled anyone reading the draft language to identify deletions and additions at a glance. [36] The union called several witnesses who participated in negotiations. Mr. Randy Graham, International Vice-President testified that following the certification there was discussion leading up to the signing of the MOS between the parties about exclusion of positions. The employer took the position at the table that certain positions involved managerial or policy responsibilities, and therefore came within the supervisory exclusion set out in the OLRB certificate. Ultimately the parties agreed that certain positions may be excluded at the option of the incumbents. This agreement was reduced to writing in para. 8 of the MOS as follows: The parties agree that in addition to Article 2.1, attached as Appendix B, the following positions may be excluded from the bargaining unit: Bus Equipment Development Officer, Bus Equipment; Cost Accountant, Accounting; Equipment Officer – Coach, Rail Equipment; Equipment Officer – Locomotive, Rail Equipment; Equipment Officer – Technical, Rail Operations Coordinator, Rail Operations; and Station Operations Instructor, Station Operations. The parties agree that the employees affected under the aforementioned list will be advised in writing through a joint letter, as attached, from the parties of their options to either remain in or be excluded from the bargaining unit. The parties further agree that the affected employees will be required to notify each party of their decision by no later than April 26, 2002. [37] Mr. Graham testified that, there were discussions about specific O/T positions to be excluded. The O/T positions agreed to be excluded were set out in para. 8 of the MOS. He understood that other than those O/T positions excluded under para. 8, O/T employees would be in the bargaining unit unless they fit within the management or confidential exclusions. He believed that the employer was of the same understanding because that was the very reason the parties agreed to exclude the specific positions listed in para. 8, which included O/T positions. The parties incorporated the agreed upon exclusion language and signed off Appendix A. (see para. 18 supra) which did not contain an exclusion of O/T employees. Mr. Graham understood that under that provision unless they fell within the management or confidential exclusion, all newly created O/T positions would be included in the unit and wage rates would be set under article 9. The evidence is that to implement the MOS including Appendix A, a recognition clause was included in the collective agreement effective January 1, 2002. Consistent with Appendix A it also did not contain an O/T exclusion. (para.17 supra). The evidence discloses that the O/T exclusion first appeared in the 2003 to 2007 collective agreement, and that provision was carried over to the 2007 to 2011 agreement that followed. The employer drafted the recognition clause in the 2003 to 2007 agreement, and was signed off by the union. The draft language presented was as follows: ARTICLE 2 – RECOGNTION 2.1 The Employer recognizes the Union as the exclusive bargaining agent for all employees of the employer employed in the Province of Ontario as specified in schedule “A1” and “A2”, or as developed through the application of Article 9, save and except supervisors and persons above the rank of supervisor, office and technical staff (save and except classifications specified in Schedule “A1” and “A2”)employees represented by the International Association of Machinists and Aerospace Workers, Local 235 as of January 2, 2002, students, and persons excluded by the ~~Ontario labour Relations Act, as amended 1995~~ Crown Employees Collective Bargaining Act, 1993. (Strike outs and underlining original) It is evident that while other additions to the clause in the previous agreement were underlined, the O/T exclusion language was not. [38] Mr. Graham testified that the employer did not at any time during negotiations seek an exclusion of O/T employees. When the draft language was presented, the employer did not bring to the union’s attention that the scope of the bargaining unit in appendix A had been narrowed by the exclusion of O/T employees. Mr. Graham agreed that the O/T exclusion was carried over to the next collective agreement from 2007 to 2011. However, there was no mention by either side during those negotiations either, about excluding O/T employees. [39] Mr. Graham testified that he realized for the first time that the recognition clause drafted by the employer for the 2002-2003 collective agreement contained an O/T exclusion not identified by underlining, during preparation for the instant proceeding. He testified that during negotiations there was discussion that the only changes required in the recognition clause were house-keeping ones. There was no mention of excluding O/T employees. A 14 page document dated February 26, 2003, titled “Management Proposals” was filed in evidence. In the first 12 pages, the employer made proposals to alter the language in various specific articles. Page 13 is titled “HOUSEKEEPING ISSUES”. Under that title proposed changes to 37 different articles are listed. The very first item under that title is, “2.1 – amend language as agreed in Memorandum of Settlement dated April 19, 2002”. Mr. Graham testified that he understood this house-keeping change would result in article 2.1 being changed to reflect the language in the MOS, which had no O/T exclusion. He referred to minutes of the negotiation meeting on March 21, 2003, indicating that there was discussion as to whether the O/T position held by Mr. Herb McGowan involved supervisory duties so as to be excluded. He insisted that any discussion about excluding O/T positions centred around whether the positions involved supervisory duties. [40] Also in evidence are notes made by Mr. Ron Atkinson, union secretary/treasurer, who was a member of the union negotiating team. His notes from negotiations on April 14, 2003 records Ms. Mary Anne Pankiw, employer lead negotiator stating: “I have a number of articles to sign-off on article 2.1 housekeeping only. Changes and exclusions”. His notes from negotiations on April 23, 2003 records Ms. Pankiw observing “Article 2, we have not confirmed Article A1 and A2. A2 is OPT, whatever that happens to be. A2 is the only item to clarify”, and Mr. Graham responding, “This is a housekeeping item we may have to revisit, once other articles are agreed to”. Mr. Atkinson’s notes from negotiations on July 2, 2003, reflect a discussion about several engineering type jobs, and a secretary position which had been changed to office coordinator. The employer had taken the position that these positions had evolved, and were no longer in the bargaining unit. Ms. Pankiw is recorded stating that “the OLRB will have to decide if the union does not agree to exclude them”. The contemplation of referral to the OLRB indicates that the disputes were about whether the positions fit within an exception enumerated in the recognition clause. [41] Mr. Atkinson testified that the primary reason for the union applying to the OLRB for an all employee unit was it wanted to represent O/T employees, who had been excluded in the former collective agreement. It was important because it meant some 110 additional union members. Referring to article 2.1 changes being described as “housekeeping”, Mr. Atkinson stated that from that he understood that there was no significant change to the recognition clause. He insisted that the employer did not at any time indicate that it wanted to re-insert the O/T exclusion, or that new O/T classifications should be excluded. He testified that when Mr. Graham stated on April 23, 2003 that the changes to article 2.1 were “housekeeping”, the employer did not suggest that there were more than housekeeping changes to article 2.1. He also pointed to his notes from negotiations on May 2, 2003, where he records Mr. Graham stating: “Back to Article 2.1 – This is housekeeping”, and that on May 7, 2003, Mr. Mike Harris, Union President, also referred to article 2.1 as “housekeeping”. He testified that like Mr. Graham and Mr. Harris, he also understood that the only changes to the recognition clause would be housekeeping changes, and that the employer did not at any time suggest otherwise. He further testified that during subsequent rounds of bargaining it did not come to his attention that an O/T exclusion had been inserted back into article 2.1. [42] In cross-examination, Mr. Atkinson agreed that the employer proposals contained three words that had been underlined indicating those were new, but in fact were not new. In re-direct, Mr. Atkinson testified that the absence of underlining to him meant that the language was from the last collective agreement with no change. He did not realize that language from the former 1999 collective agreement had been inserted into article 2.1. [43] Mr. Denis Tanham who replaced Mr. Harris as Union President in September 2003 testified that the only discussion during negotiations relating to exclusions from the bargaining unit centred around whether particular positions fell within the supervisory exclusion. [44] Ms. Jean Norman, Director of Corporate Services/Corporate Secretary, testified for the employer. She confirmed that at the time of uploading the union did not have representation rights for any O/T employees. In cross-examination she confirmed the practice of underlining changes and additions, and striking out deletions in draft language. She agreed also that the language in Appendix A to the MOS signed on April 19, 2002 “became the new recognition clause between the parties”. She agreed that the usual process was to work from the recognition clause in the last collective agreement, and present drafts with underlining for changes and additions to that language and strikeouts for deletions. However, she went on to state, “But we were working from the former collective agreement, not the MOS”. [45] Counsel for the union put to Ms. Norman that since she agreed that the language in Appendix A became the new recognition clause between the parties, article 2.1 of the collective agreement logically should reflect that language. Ms. Norman replied, “I don’t know. The union relied on us to do the paper work. We used the former collective agreement and there was no objection to the language we presented. Had we made an error, it wouldn’t be the final result. We make best effort. But sometimes we can make mistakes. We used the former collective agreement because that is what we had in our system”. When counsel pointed out that Mr. Graham and Mr. Atkinson had testified that they did not realize that language from the former collective agreement had been inserted, Ms. Norman replied, “I cannot speak to that. When we present language we expect the union to review it carefully before signing off”. Asked whether she was aware of any other occasion when the employer used a past collective agreement instead of the most recently negotiated language, she replied, “I explained why we used the former collective agreement. I don’t recall ever having MOS like we had here”. [46] Mr. Michael Gray, Employee Relations Officer, testified that during the 2002 negotiations following certification of the union, he drafted proposals on O/T positions the employer wanted to exclude. Where the employer opposed the inclusion of positions it provided reasons. He testified, “Reason for exclusion would have centered around management rights, need for flexibility in operations and positions being in conflict with other bargaining unit positions”. Mr. Gray recalled that position inclusion/exclusion was one of the more significant issues between the parties. That issue was negotiated and resolved in March and April 2002. He recalled drafting the MOS and Appendix A and e-mailing it to the Union. [47] Under cross-examination, Mr. Gray agreed that during the OLRB proceeding, the parties had agreed upon certain exclusions. However, during negotiation of the collective agreement the employer sought more exclusions. It was agreed between the parties that the O/T employees the employer wanted excluded would be given the option of being in or out of the unit. He testified that all O/T employees given the choice opted to be out of the bargaining unit. He agreed that ultimately the parties agreed in the MOS, to exclude some additional positions including O/T positions, as reflected in para. 8 of the MOS. [48] Ms. Heidi Mueller, succeeded Mr. Gray as Employee Relations Officer. She attended negotiation meetings, and was responsible for note-taking. Reviewing her notes from negotiations on April 23, 2003, she testified that the employer presented proposed language for article 2.1 and schedule “A1” and “A2”. Referring to the draft language presented, she confirmed that underlines indicated additions and strike outs meant deleted. [49] In cross-examination, Ms. Mueller agreed that the proposal was to split the existing single schedule into two. She testified that schedule A2 included O/T employees, as well as some front line employees, and that one reason for splitting the schedule into two in the MOS was the different working conditions of employment O/T employees had compared to front line employees. Ms. Mueller was shown the list of items presented to the union under the title “Housekeeping Issues”. Union counsel suggested that “at the table these were described by management as housekeeping in nature”. Ms. Mueller agreed. She also agreed that this included the proposed changes to article 2.1; that the employer did the underlines and strikeouts in the proposed language for article 2.1; that any changes to the existing language should have been indicated by underlines or strikeouts; and that the existing article 2.1 language was that negotiated in the April 2002 MOS, and not the language in the 1999 collective agreement the employer used. [50] Counsel put to Ms. Mueller that several housekeeping type changes were made to the 2002 language in the proposed language. For example, “[Ontario Labour Relations Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l2/latest/rso-1990-c-l2.html)” was replaced by “Crown Employees Collective Bargaining Act”, and a reference was added to the machinists union. She agreed that the employer had highlighted each of these changes by underlining or strikeouts. She conceded that the addition of language excluding a group of employees who had not been excluded by the existing language was not a housekeeping change, and that in any event that change should have been underlined. Counsel put to Ms. Mueller that her own notes and notes made by union representatives do not indicate that there was any mention or discussion of “a new exclusion” being added to the existing article 2.1. She was asked whether she recalled any such discussion. She replied that she did not. [51] It is now established that arbitrators have the authority to rectify terms of a collective agreement where certain conditions are met. ([Public Service Alliance of Canada and NAV Canada, (2002) 2002 OCA minicounsel 210](https://www.minicounsel.ca/oca/2002/44896), 59 O.R. (3D) 284 (Ct. of Appeal, Ontario). There the court reviewed the evolution of the law relating to the remedial powers of arbitrators, including the recognition of broad remedial powers of arbitrators by the Supreme Court of Canada in [Weber v. Ontario Hydro 1995 SCC minicounsel 60](https://www.minicounsel.ca/scc/1995/108), [1995] 2 S.C.R. 929, and a number of other cases. At para. 42, Catzman J.A. concluded: More recent decisions of that court have concluded that arbitrators have exclusive jurisdiction to resolve disputes arising under a collective agreement and that, in resolving those disputes, arbitrators have the power and duty to apply “the law of the land”, both jurisprudential and statutory. One of the elements of the law of the land is the power to grant the remedy of rectification, and, in my view, the jurisprudence has now advanced to the point where arbitrators have the power to grant that remedy in adjudicating disputes arising out of a collective agreement. I would allow the appeal. [52] The court in Re NAV Canada (supra) confirmed further that the remedy of rectification is available for mutual mistakes as well as unilateral mistakes. At para 44 it wrote: The Supreme Court of Canada has recently had occasion to consider the equitable remedy of rectification in [Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd., 2002 SCC 19](https://www.minicounsel.ca/scc/2002/19), 209 D.L.R. (4^th) 318, [2002] S.C.J. No. 20 (“Performance Industries”). The majority judgment was delivered by Binnie J., who observed that the remedy is available not only for mutual mistake but also for unilateral mistake, where certain defined requirements are satisfied. He said, at para. 31: Rectification is an equitable remedy whose purpose is to prevent a written document from being used as an engine of fraud or misconduct “equivalent to fraud”. The traditional rule was to permit rectification only for mutual mistake, but rectification is now available for unilateral mistake (as here), provided certain demanding preconditions are met. [53] The availability of rectification for both mutual and unilateral mistake is also now settled in arbitral jurisprudence. Thus in Re Toronto Police Services Board (2008) 170 L.A.C. (4^th) 421, (Kaplan) at p. 443 it is observed: There is no longer any serious dispute that arbitrators have the jurisdiction to apply the doctrine of rectification. Arbitrators may apply this doctrine where the collective agreement executed by the parties does not accurately reflect the true agreement of the parties. When applied in the labour relations context, rectification results in the alteration of the written terms of a collective agreement. In order to rectify a collective agreement, the arbitrator must be satisfied that there was an earlier consensus reached between the parties and that that consensus was not reflected, because of mutual mistake or unilateral mistake, in the subsequently executed collective agreement. Rectification is an equitable doctrine and an arbitrator should only apply it where the evidence of earlier shared intention is objective, not speculative. Moreover, the evidence must establish that shared intention on a standard of convincing proof. [54] The preconditions that must be met by a party seeking rectification have been described as four “high hurdles”. In Re NAV Canada (supra), the Court of Appeal reviewed those as follows: [45] The preconditions for rectification are not easy to meet. They are designed to ensure that the remedy does not become an escape route for contracting parties seeking to get out of improvident bargains. Thus, Performance Industries lays down four “high hurdles” that must be overcome. The party seeking rectification must: -- “…show the existence and content of the inconsistent prior oral agreement” (para. 37); -- “… show that the written document does not correspond with the prior oral agreement” and that permitting the other party to take advantage of the mistake in the written document would be fraud or equivalent to fraud. “Equity acts on the conscience of [a party] who seeks to take advantage of an error which he or she either knew or ought reasonably to have known about at the time the document was signed” (para. 38); -- “…show ‘the precise form’ in which the written instrument can be made to express the prior intention”. The equitable jurisdiction to rectify does not permit speculation about the parties’ unexpressed intentions but “is limited to putting into words that – and only that – which the parties had already agreed to” (para. 40); and -- Establish all of these requirements on a standard of convincing proof (para. 41). [55] The Board, therefore, must be satisfied that these four conditions are met to justify the invocation of the equitable remedy of rectification in this case. With respect to the first requirement, the evidence is that following certification the parties executed a MOS and to implement the MOS agreed upon the language for a recognition clause to be included in the collective agreement. (supra, para. 17). It is clear that the language agreed upon in both documents does not have a general exclusion of O/T employees. Thus there is evidence of agreement, which was in fact reduced into writing, for a recognition clause that did not exclude O/T employees. In the circumstances the first condition is clearly met. [56] The Board finds that the second requirement is also clearly satisfied. The language which ultimately found its way into the collective agreement as article 2.1 excludes “office and technical staff” as a class “save and except classifications specified in Schedule “A1” and “A2”, among others. That exclusion is a significant departure from the agreement struck and in fact signed off in the MOS. [57] The evidence is convincing that the inclusion of the O/T exclusion was a mistake. A number of individuals who were directly involved in the negotiation process on behalf of the employer testified. They did not contradict the testimony of the union witnesses on this issue. The testimony of the union witnesses that the employer did not at any time during negotiations seek the exclusion of O/T employees was uncontradicted and unchallenged. It is particularly striking that none of employer witnesses testified that there was agreement between the parties to exclude O/T employees, or that the insertion of that exclusion was not a mistake. To the contrary, there is evidence that the “mistake” originated with the employer. Ms. Norman candidly testified that the collective agreement the employer worked from in drafting proposed language for recognition clause in the 2002 collective agreement was the pre-certification agreement from 1999. She explained that the employer did that because that was the collective agreement that was in the employer’s “system”. There is no allegation by the union, and there is no evidence, that the employer acted in bad faith by intentionally slipping in an additional exclusion, hoping that it would not be detected. Nevertheless, the evidence is that the employer included the exclusion by mistake as a result of working out of a past collective agreement instead of the most recent agreement enshrined in the MOS, and it went undetected by the union. [58] The union was likely misled, albeit unintentionally, by the fact the additional words excluding O/T employees were not underlined as it reasonably expected based on past practice. It may also have been taken off guard by the fact the exclusion of O/T employees was incorrectly buried under a misleading title “Housekeeping Issues”, along with 36 other true “housekeeping” changes. There is no reason to disbelieve the union officials who testified that they did not realize that language not agreed upon had been inserted into the recognition clause, until after the collective agreement had been signed off or during the subsequent round of bargaining. [59] The employer’s failure to underline the O/T exclusion in the language presented to the union is easily explained. The “existing language” the employer incorrectly worked out of was language from an outdated collective agreement. It included language excluding O/T employees. Therefore, as far as the employer was concerned there was no change in its proposed language, and therefore no need to underline. Ms. Norman, having explained why an outdated collective agreement was used, testified that the employer expects the union to carefully read contract language presented, before signing off. That is a reasonable expectation which the Board shares. Nevertheless, that does not detract from the fact that in this instance the union did not somehow notice that a significant addition, not consistent with the agreement of the parties, had found its way into the recognition clause. The Board has already ruled in favour of the employer with regard to the scope of the recognition clause article 2.1, apart from the O/T exclusion. It has also concluded that the O/T exclusion was not agreed upon, and found its way to article 2.1 inadvertently. It is not conscionable to permit a party to take advantage of an inadvertent mistake. The language the parties would have incorporated in article 2.1 but for the mistake is discernable without difficulty. Therefore, the third requirement discussed in Re NAV Canada, (supra) is met. [60] The fourth requirement for the application of the remedy of rectification is that the foregoing three requirements must be established on a standard of convincing proof. The Board has set out the evidence that support the conclusion that this requirement is also met. Therefore, it is appropriate to rectify the collective agreement to give effect to the agreement the parties reached on the scope of the recognition clause. [61] Accordingly, and for all of the foregoing reasons, the Board orders as follows: (a) The recognition clause article 2.1 does not extend union representation for an all employee bargaining unit. The “all employee” description is qualified and limited by the words that follow “as specified in Schedule “A1” and “A2” or as developed through the application of Article 9”. (b) The recognition clause must be rectified to reflect the agreement reached between the parties with respect to treatment of O/T employees. The evidence of the union witnesses, confirmed by employer witnesses, is that the employer presented a list of O/T positions it wanted excluded and gave reasons as to why those should be excluded. The parties ultimately agreed on a number of O/T positions which may be excluded if the incumbents elected to remain out of the bargaining unit. Those were set out in para.8 of the MOS. There is no evidence of any discussion, leave aside agreement, about excluding any other O/T positions. The parties have addressed the treatment of O/T employees separately from the rest of the workforce. There was no agreement between the parties to exclude O/T employees as a class. Therefore the words “Office and Technical staff (save and except classifications specified in schedule “A1” and “A2”)” shall be deleted from article 2.1. Their agreement is that set out in para. 8 of the MOS dated April 19, 2002. Any O/T employees in the positions specified therein are excluded if they opt to remain out of the unit pursuant to that provision. All other O/T employees who are not otherwise excluded by the remaining exclusions, namely “supervisors and persons above rank of supervisor, employees represented by the International Association of machinists and Aerospace Workers, Local 235 as of January 2, 2002, students, and persons excluded by the Crown Employees Collective Bargaining Act, 1993”, would fall within the bargaining unit represented by the union whether or not their positions are listed in Schedules A1 or A2. The parties are directed to agree upon language to reflect that agreement. [62] The Board retains jurisdiction to deal with any further issues arising out of the instant policy grievance, including any issues relating to the implementation of this decision. Dated at Toronto, Ontario this 12^th day of August 2014.31:["$","$L7b",null,{"caseData":{"id":199489,"body":"$7c","year":2014,"court":{"id":26,"name":"Grievance Settlement Board","slug":"ogsb","abbreviation":"OGSB"},"issues":[{"id":405865,"outcome":"limited to specific classifications — union's interpretation rejected","description":"Whether the recognition clause creates an 'all employee' bargaining unit or is limited to specific classifications.","issue_index":0},{"id":405866,"outcome":"granted — collective agreement rectified to remove the general exclusion","description":"Whether the exclusion of 'office and technical staff' in the recognition clause was a mistake that should be rectified.","issue_index":1}],"judges":[],"source":"https://www.canlii.org/en/on/ongsb/doc/2014/2014canlii63515/2014canlii63515.html","lawyers":[],"parties":[{"id":263770,"name":"Amalgamated Transit Union - Local 1587","role":"applicant"},{"id":264223,"name":"The Crown in Right of Ontario (Metrolinx - GO Transit)","role":"respondent"}],"summary":"The union filed a policy grievance alleging the employer failed to recognize certain positions as falling within the bargaining unit. The parties asked the Board to interpret the recognition clause. The Board held that the recognition clause did not create an 'all employee' bargaining unit, but was limited to the classifications specified in the schedules or developed under article 9. However, the Board found that the general exclusion of 'office and technical staff' was inserted by mistake during drafting and did not reflect the parties' agreement. The Board applied the doctrine of rectification to remove the general exclusion of office and technical staff from the collective agreement.","citation":"Amalgamated Transit Union, Local 1587 (Union) v Ontario (Metrolinx - GO Transit), 2014 OGSB minicounsel 107","court_id":26,"keywords":["all employee unit","collective agreement interpretation","extrinsic evidence","mutual mistake","office and technical staff","recognition clause","rectification","unilateral mistake"],"province":{"id":1,"name":"Ontario","abbreviation":"ON"},"one_liner":"Board interprets recognition clause as classification-based but rectifies agreement to remove mistaken office and technical exclusion.","case_types":["trial"],"date_heard":"2012-11-15","cited_cases":[{"id":889793,"url":"https://www.minicounsel.ca/olaa/1967/1051","title":"Re Budd Automotive Co. 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