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 Counsel
Kassia Bonisteel Ursel Phillips Fellows Hopkinson LLP Counsel
FOR THE EMPLOYER
Glenn Christie Hicks Morley Hamilton Stewart Storie LLP Counsel
HEARING
October 6, 2015
Decision
1This is a proceeding with a history. A policy grievance dated June 16, 2008, was heard by the Board over eight days, and its decision was issued on August 12, 2014. An application for judicial review by the employer was heard by the Divisional Court on June 25, 2015. Its decision was released on July 27, 2015.
2The grievance raised the issue of whether or not seven positions were included within the bargaining unit represented by the union. The union took the position that it had bargaining rights with respect to an "all employee" unit under the recognition clause of the collective agreement. It submitted in the alternative that if the Board finds the language in the recognition clause to be ambiguous, evidence relating to negotiating history and past practice would support its position. It further argued that the employer was estopped for asserting that the bargaining unit was not an "all employee" unit. The employer disagreed.
3The second dispute relating to the scope of the bargaining unit was about whether or not office and technical employees were excluded from the bargaining unit. The employer asserted that they were excluded. The union took the position that the language excluding "office and technical staff" was inserted in the collective agreement by mistake, and urged to Board to exercise its power to rectify. In the alternative, the union asserted that the employer was estopped from claiming an exclusion of office and technical employees.
4For purposes of this decision, it is sufficient to note that the Board held that the union was not entitled to an all employee bargaining unit. The union's arguments based on negotiating history and past practice, as well as its estoppel argument were rejected. The Board concluded that the "all employee" language in the recognition clause was qualified by the words "as specified in Schedule A1 and A2, or as developed through the application of Article 9".
5On the second issue in dispute, the Board upheld the union's position. It held that the language in the recognition clause excluding "office and technical staff" was included as a result of a mistake on the part of the employer who prepared the language to be signed off, and that such an exclusion was not consistent with the agreement reached during bargaining. The Board applied the equitable doctrine of rectification to delete that exclusionary language from the recognition clause.
6In its application for judicial review of the Board's decision, the employer focussed on the Board's decision to rectify the language in the recognition clause. The Court's conclusion is summed up at para 2 of its judgement, where Swinton J. wrote:
[2] In my view, the Vice-Chair of the Board reasonably concluded that rectification was an appropriate remedy on the facts of the case. He reasonably directed that the