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)

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 28, 2016

Decision

1On August 12, 2014 the Board issued its decision in relation to the instant policy grievance dated June 16, 2008. On July 27, 2015 the Divisional Court released its decision on an application for judicial review filed by the employer.

2The issues raised by the grievance and the Board’s determination of those issues were summarized in a subsequent decision dated October 14, 2016 as follows at paragraphs 2-5:

[2] The 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.

[3] The 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.

[4] For 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”.

[5] On 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.

3It suffices to note that the foregoing findings by the Board were unaffected by the judgement of the Divisional Court. That left still outstanding, the disagreement between the parties as to whether the seven positions in question were included in or excluded from the bargaining unit in light of the language of the recognition clause as rectified by the Board.

4What transpired when the Board reconvened on October 6, 2015 is set out in the Board’s decision dated October 14, 2016 at paragraphs 8-10 as follows:

[8] With that background, I turn to the issue presently before the Board. Following the court decision, the issue of the inclusion/exclusion of the seven positions identified by the parties to be in dispute was still to be determined. When the Board convened, the union sought to argue that in light of the recognition clause as rectified, all office and technical positions were in the bargaining unit, whether or not they meet the requirement in the recognition clause, “as specified in Schedule A1 and Schedule A2, or as developed through the application of Article 9,” and that the employer is in any event estopped from asserting a contrary position.

[9] The employer took the position that the union is not entitled to advance that argument. Counsel contended that the issue had been already decided by the Board in its decision, and the Board’s interpretation in that regard had been upheld by the court. It took the position that the issue of the interpretation of the scope of the bargaining unit had been determined and the only remaining issue was whether seven specific positions were in or out of the bargaining unit in light of the rectified language. The Board was functus and had no jurisdiction to hear more evidence and submissions on the issue of the scope of the bargaining unit. Counsel also submitted that the issue the union seeks to argue is precluded by the doctrine of res judicata, and would amount to an abuse of process. (For ease of reference all of the arguments by the employer are hereinafter referred to as “the functus motion”).

[10] Once the foregoing dispute was joined, the employer moved that the Board hear and determine its motion as a preliminary matter, before dealing with the merits of the grievance relating to the inclusion/exclusion of the seven specific positions. The union urged the Board to deal with the functus motion as well as the merits, and rule on all issues at the conclusion of the hearing. This decision deals solely with the issue of whether or not those two matters should be heard together as proposed by the union, or bifurcated as proposed by the employer.

5Following a review of the arbitral jurisprudence, the Board concluded that bifurcation is appropriate where (a) the issues relating to the preliminary objection are clearly separate and distinct from the merits of the grievance; (b) a decision on the objection would be dispositive of the entire grievance; and (c) such a disposition would save significant amounts of time and resources that would otherwise be necessary to hear the matter on the merits.

6The Board concluded that while criterion (a) is met in the instant proceeding, criteria (b) and (c) did not support bifurcation. In concluding that bifurcation of the instant proceeding was not appropriate, at para. 20 the Board wrote:

[20] The foregoing submissions by the employer does nothing more than further support and reinforce the undisputed fact that the employer’s functus motion is separate and distinct from the merits of the grievance. Therefore, it is possible to hear and determine the motion in a preliminary way without the risk of having to hear the same evidence twice. However, that by itself is not sufficient reason to bifurcate proceedings. The case law contemplates not only that the matters are severable and amenable to bifurcation without risk of duplication of evidence. There has to be some benefit resulting from bifurcation. The jurisprudence contemplates that bifurcation results in saving of time and/or resources. It further envisages that bifurcation of the matter has the potential of disposing of the whole grievance. This requirement is also related to efficiency, because where the grievance is disposed of in its totality, there would be significant saving of time and resources. This would have been the case, for example, if the disposition of the functus motion had the potential of disposing of the merits of the grievance relating to the seven positions. It is agreed, however, that the merits of the grievance would have to be heard and determined regardless of the outcome of the functus motion. The case law does not support a proposition that bifurcation is appropriate merely because it can be done conveniently.

7Following the Board decision denying the employer’s motion for bifurcation, hearings were scheduled for October 28, 2016, and January 24, 25 and 26 of 2017 to deal with the merits of the grievance as to whether the seven positions in dispute were in or out of the bargaining unit. When the Board convened on October 28, 2016, union counsel advised that certain issues had arisen between the parties that needed to be addressed. He stated that following the Board’s decision the parties had agreed to time lines for particulars and production, but those time lines had not been met by the employer. The Board was not asked to intervene in that regard, but was advised that the employer had agreed to continue its efforts to provide particulars and production in advance of the next scheduled hearing date of January 24, 2017. It was agreed that in the circumstances the hearing on the merits could not commence until the next hearing date.

8The other issue had to do with a further request for bifurcation the employer intended to make. The Board proceeded to receive submissions on the employer’s request. Employer counsel pointed out that since the Board issued its decision dated October 14, 2016, refusing to bifurcate, circumstances had materially changed in two ways, and that in light of those changed circumstances, all of the preconditions for bifurcation are met, and bifurcation would therefore be appropriate now.

9The first changed circumstance relied on by the employer is based on particulars provided by union counsel on April 29, 2016. In essence, in those particulars the union advises that to its knowledge five of the seven classifications in dispute do not perform duties which are the same, or analogous to, duties performed by bargaining unit classifications. Employer counsel pointed out that given that position of the union, the union’s claim with regard to those five positions would be based only on its argument that they are OFPT positions, and are therefore included in the bargaining unit under the recognition clause as rectified.

10Employer counsel submitted that given that position now taken by the union, if the employer’s submission that the union should not be allowed to take that position is upheld, that would fully dispose the grievance as it relates to those five positions. That would leave for determination only whether the two remaining positions of Project Officer and Customer Care Coordinator are included in the bargaining unit on the basis that they perform the same or analogous duties to those performed by positions in the bargaining unit. Employer counsel submitted that in these circumstances all three conditions set out by the Board would be substantially met. A decision upholding the employer`s legal position would dispose five out of seven positions subject to the grievance, and there would be significant savings of time and resources.

11The second changed circumstance relied on by the employer has to do with two policy grievances filed by the union (GSB File no: 2015-1990 and 2015-1991), which are scheduled to be heard by a differently constituted panel of the Board on January 23, 2017, the day before the instant proceeding is scheduled to continue. Employer counsel argued that in those grievances the union is seeking assert that it represents an all OFPT employee bargaining unit and argue estoppel based on extrinsic evidence. Counsel submitted that the claim for an “all OFPT employee” unit is the same as a claim for “an all employee” bargaining unit. The Board in the instant proceeding had heard and rejected those same arguments and the Divisional Court had upheld that. The union now was attempting to relitigate the same issues before a differently constituted Board, by filing new policy grievances. Counsel submitted that if the Board hears and determines its legal arguments in a preliminary way, it would assist the Board hearing the two new grievances, and it would promote the Board’s institutional interest of giving finality to its decisions, by not permitting parties to relitigate decided issues.

12Union counsel submitted that the employer’s attempt once again to have the proceeding bifurcated should be denied. The reasoning which caused the Board to refuse bifurcation the first time continues to be valid. He pointed out that following the Board’s decision a process was agreed to have all of the issues in the grievance determined as expeditiously as possible. Four hearing days were scheduled for that purpose. The hearing could not proceed on the first of those days because the employer had not met the agreed to time lines for particulars and production. Now the employer was attempting to slow down the process further by using the remaining scheduled hearing dates for a second bifurcation motion, instead of proceeding to deal with the merits of the grievance and the employer’s legal objections together, as contemplated in the Board decision.

13Counsel argued that the employer’s position is premised on an assumption that the Board’s finding that the union did not represent an “all employee” bargaining unit is the same as a finding that it did not represent an “all OFPT employee” bargaining unit. The union would be taking the position that the two are not the same. Counsel further argued that, in any event, the Board’s denial of representation rights for an “all employee” unit, does not represent the Board’s interpretation of the recognition clause after it was rectified by the deletion of the “office and technical staff” exclusion language. The Board is yet to interpret the rectified recognition clause, and the union is entitled to make submissions in that regard.

14Union counsel pointed out that the employer has in any event conceded that its proposed preliminary issue would not fully dispose of the instant policy grievance even if it is decided in the employer’s favour. The dispute will remain as it relates to two positions, and substantial evidence would have to be heard on the duties and responsibilities of those two positions as compared to duties of bargaining unit positions.

15Counsel pointed out that the union received notice of the employer’s intention to advance a second motion for bifurcation the day before the hearing scheduled for October 28, 2016. At the hearing the employer proposed that its legal submissions be bifurcated and heard on the next hearing date scheduled for January 24, 2017. That would mean that the merits of the grievance would not be completed within the scheduled dates, and those dates would be wasted. The appropriate process is to reaffirm the Board’s earlier decision not to bifurcate because criteria (b) and (c) continue to be not met, and proceed in accordance with the decision the Board has already made.

16Union counsel submitted that the scheduled hearing of the two new policy grievances before another panel of the Board on January 23, 2017, should not cause the Board to abandon the course it set up to have the instant grievance fully decided once and for all, by using the remaining scheduled hearing dates for that purpose. In the two new policy grievances, both the union and the employer are represented by different legal counsel. It would be up to that Board to consider the submissions of the respective counsel and decide whether or not to entertain the grievances, given the prior decisions in the instant proceeding. That should have no bearing on the decision made in the instant matter.

17In reply, employer counsel submitted that all of the remaining hearing dates (January 24, 25 and 26 of 2017) would not be lost if the Board agrees to bifurcate. It was his view that the preliminary issue could be argued on January 24^th and the Board could reserve its decision. The Board could then proceed on the two remaining dates to receive evidence and submissions with regard to the positions of Project Officer and Customer Care Coordinator.

DECISION

18I am of the view that the filing of two new policy grievances and the hearing scheduled for January 23, 2017 are completely irrelevant in the determination of the present request for bifurcation. At this point all the employer can point to are the particulars filed by union counsel in that proceeding. Based solely on particulars filed at this stage it is not possible to determine what the legal issues would ultimately arise in that proceeding or what the legal submissions would be. It is not appropriate to speculate on that. This is particularly so because neither counsel before me is counsel in that matter. In any event, it is not the role of one panel of this Board to fashion its decision so as to “assist” another panel of the Board, seized with different grievances. It would be up to that panel to make its own determinations based on evidence (if any) and submissions advanced in that proceeding, and to consider the significance of decisions made in the instant proceeding, to the extent it deems fit to do so.

19In any event, when that Board convenes on January 23, 2017, it would not have any decision from me on the employer’s legal position. If the requested bifurcation is ordered, the submissions on the employer’s legal position would at best be completed on January 24, 2017. Then it will be some time before a decision is issued. That decision could possibly “assist” the other panel only if that Board delays that proceeding also, by adjourning it pending the issuance of this Board’s decision. While the course of that proceeding may be determined by agreement of the parties, or by Board order, it is not appropriate for me to make decisions that would affect that process in anticipation of what may or may not happen in that proceeding. In all of the circumstances I attach no significance to that proceeding in my determination of the present request for bifurcation.

20The employer’s legal argument which it presently seeks to bifurcate and have determined as a preliminary matter is the same as that described in paragraph 9 of the decision dated October 14, 2016 reproduced at paragraph 4 (supra). The Board considered the submissions of the parties and concluded that bifurcation of that legal issue was inappropriate. The present request is, therefore, in effect a request for reconsideration of the Board’s decision on the grounds that circumstances have changed based on the particulars filed by the union. That “changed circumstance” was communicated by the union to the employer on April 29, 2016, and the union was notified on the eve of the October 28^th hearing, of the employer’s intention to seek bifurcation again.

21Having considered the respective submissions of the parties, I decline to exercise the Board’s discretion to bifurcate the proceeding. Foremost in my mind in so declining the request is the concern about the impact of such a precedent on the Board’s processes. It is fair to say that there are many proceedings before this Board which continue over prolonged periods, sometimes extending over several years. The present proceeding which commenced in 2014 is one such example. It is also not uncommon that as the hearing proceeds, procedural, evidentiary or other preliminary decisions are made along the way. In workplaces there could be changes occurring on a regular basis in relation to duties and responsibilities, work methods, work schedules, employer policies and procedures etc. In my opinion, it would seriously impede the efficiency and efficacy of the Board’s proceedings if it is open to a party to bring the proceedings to a halt in midstream, to argue that the Board should reconsider a decision it had already made earlier in the proceeding, on the grounds that there had been some subsequent change that should cause the Board to reverse its decision. In a worst case scenario, during the course of a hearing there could be multiple claims of changed circumstances and requests for reconsideration by one or both parties.

22Apart from the foregoing policy concern, I am not satisfied that the criteria (b) and (c) are substantially met even on the basis of the changed circumstance in relation to five of the seven positions. While the volume of evidence required would likely be substantially reduced as a result of the union’s position on the five positions, the fact remains that even a decision favorable to the employer on its legal position would not be “dispositive of the entire grievance (that is, would eliminate the need for a hearing on the merits)” as contemplated in criterion (b). It is beyond dispute that the entire grievance would not be disposed of. The merits of the grievance would have to be heard with respect to two positions claimed by the union. Criterion (c) is also not met. It contemplates that “such a disposition”, that is a disposition of the entire grievance, would save significant amounts of time and resources. That criterion is also not fully satisfied in this case, since any savings of time and resources do not result from a disposition of the entire grievance. I also note that apart from the possible savings of time and resources, the employer has not suggested that the decision not to bifurcate would prejudice it in any other way.

23For all of the foregoing reasons, the employer’s request for bifurcation of the instant proceeding is denied. The Board remains seized, and the hearing will proceed as scheduled.