GSB# 2018-1095

UNION# G-20-18-BOE

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union – Local 1587 (Botelho)

Union

• and -

The Crown in Right of Ontario (Metrolinx – GO Transit)

Employer

BEFORE

S.L. Stewart

Chair

FOR THE UNION

Katy O’Rourke Ursel Phillips Fellows Hopkinson LLP Counsel

FOR THE EMPLOYER

Jessica Fay Metrolinx Counsel

HEARING

November 27, 2018

DECISION

1This decision deals with a preliminary issue involving the scope of a grievance. It is the position of the Employer that an aspect of the remedy sought does not fall within my jurisdiction. It is the position of the Union that it does. The parties presented me with the following Agreed Statement of Facts:

1. This matter involves a grievance commenced in 2018 by the Amalgamated Transit Union, Local 1587 regarding a letter of warning issued to Mr. Michael Botelho (the “Grievor”). The Union has also grieved “management’s decision not to change a preventable collision to a non preventable collision that occurred on December 12, 2017 in the Oshawa Garage.” 2. As a remedy, the Grievor and the Union are seeking, inter alia, the removal of the preventable collision from all files. 3. The Union’s grievance is attached as Tab 1 (the “Grievance”), and the Collective Agreement effective June 2, 2014 to June 1, 2018 between the parties is attached as Tab 2. 4. The Collective Agreement at Tab 2 has been substantially renewed for the period of June 1, 2018 to June 1, 2022.

Collision Investigation 5. All collisions involving Metrolinx bus drivers are reviewed by Metrolinx’s Safety and Training department. The protocol for collision investigations is attached as Tab 3. 6. Metrolinx’s Safety and Training office renders a decision on whether the collision was preventable or non-preventable based on the details of the collision supplied by the driver and the driver’s Supervisor. 7. If a driver is unsatisfied by the decision of the Safety and Training office, the parties have allowed the driver to request that the Safety and Training office complete a second review of the closing for reconsideration. The second review will include any information brought forward by the driver during the collision interview process. The Safety and Training office will re-review the facts of the case and review their disposition. The review will exclude the individual in Safety and Training who made the original determination.

The Ontario Safety League 8. The Ontario Safety League provides the general public with safety information and safety-based programs and a range of safety courses and services for the transportation industry. One such service is the independent review of collisions to determine if a specific collision was preventable or non-preventable. 9. The Ontario Safety League does not derive its authority from a statute or regulation and it is not one of the 500 provincial boards, agencies or commissions in Ontario overseen by the Ontario Ombudsman. According to the Ontario Safety League’s website in regards to appeals of findings of preventable collisions, “[t]he member company has the final say in the matter.” 10. The Collective Agreement between the parties states at Article 41.3:

When the employee has requested the Ontario Safety

League (OSL) to review the findings of a collision decision, the employee will provide the OSL with all required documentation specific to the collision, for the purpose of determining whether the collision was preventable or non-preventable. In providing documentation to the OSL in accordance with article 41.3, the Employer will provide all personal information about the drivers involved in the collision. In addition, the Employer will remove all references to pronouns which may disclose the gender of the individuals involved in the collision. In place of pronouns, the Employer will insert the word “Driver”. The cost of the review will be borne by the employee. The decision reached by the OSL shall be deemed binding. If the result of the decision is deemed non-preventable, then the employee shall be reimbursed for the cost of the review.

11. Article 41.3 has been a part of the Collective Agreement since at least 2007. Excerpts on the Ontario Safety League from previous Collective Agreements are attached at Tabs 4 and 5. 12. The Grievor has not requested that the Ontario Safety League review the findings of the collision disposition at issue in this matter. 13. Drivers have availed themselves of the process to have Ontario Safety League review collision dispositions reached by Metrolinx’s Safety and Training office. Recent letters from the Ontario Safety League regarding the review of a collision can be found at Tabs 6, 7, and 8.

2The management rights clause of the Collective Agreement, Article 6.1, reserves “all the usual rights and functions of management” including the right to discipline, subject to the typical just cause caveat. Article 4.9 of the Collective Agreement contains the usual prohibition precluding the arbitrator from altering amending or modifying its provisions.

3On behalf of the Employer, Ms. Fay acknowledged that if the Board were to determine that there was no just cause for the issuance of the letter on the basis that the accident was not preventable, that determination would be exhaustive in relation to the grievor’s employment and there could be no prejudice to the grievor’s employment arising from the matter. However, she noted that findings with respect to preventability of accidents are employed by Metrolinx for purposes such as training and risk assessments and it was submitted that my jurisdiction would not extend to an ability to re-characterize the accident for those purposes. There is, in Ms. Fay’s submission, a specific process contemplated by the Collective Agreement that provides the individual driver an opportunity to challenge the conclusion about the preventability of an accident that must be pursued if the characterization is to be challenged for those purposes. In her submission, accepting the Union’s position on this issue would be to fail to give any meaning to this provision. As well, Ms. Fay suggested that if the Union’s position were accepted, there would be the potential for the availability of two routes to determine the issue of preventability for all purposes, with the potential for inconsistent conclusions.

4Ms. Fay relied on J.M. Schneider and Schneider Employees Association [2006], O.L.A.A. No. 548 (Abramsky), in support of the Employer’s position. In that case, the grievor was involved in a driving accident. Although the accident was determined to be preventable, no discipline was imposed. However, a record was kept of the accident and the Transportation Health and Safety Association of Ontario was advised. The Association credited drivers for each year without a preventable accident on their driving record and provided the driver with a safety pin, based on that record. In that instance the driver did not obtain recognition for the year of the accident and did not receive a safety pin. The Union claimed that the accident investigation was flawed and that there had been an arbitrary and improper exercise of management rights. Arbitrator Abramsky rejected the Union’s position and in dismissing the grievance concluded that the adverse consequences to the grievor in relation to the Association did not mean that the matter was disciplinary. In paragraph 43, she noted that:

It may well be, as the pamphlet from the THSAO Employee

Recognition Program states, that the Company must keep

the “decision about preventability … as part of the worker’s

permanent record.” That does not mean, however, that it

forms part of the grievor’s employment record which may

be relied on by the Company. Employers are required to

keep all kinds of records, by law and regulation, in a

myriad of areas including safety and accidents. The

fact that a record must be kept does not mean that the

Employer can rely on it to the grievor’s detriment. In

this case, the Employer had an opportunity to discipline

the grievor and chose not to do so. What occurred on

November 17, 2005, therefore, cannot be used by the

Company to prejudice the grievor in the future.

Arbitrator Abramsky further concluded that the advice to the THSAO did not constitute discipline by the employer, notwithstanding the adverse consequences for the grievor. She noted that her jurisdiction derived from the provisions of the collective agreement and that this matter did not entail the interpretation, application or alleged violation of that agreement. She further concluded that the management rights provision did not confer jurisdiction in that instance, given that there was no link to the just cause provision on the facts, that this was not a policy grievance and that the grievance did not specifically challenge a policy.

5The Union submitted that the matter of whether the collision was not preventable was properly before me in its entirety, not just in relation to the just cause aspect of the matter. In Ms. O’Rourke’s submission, the determination contemplated by Article 41.3 of the Collective Agreement can be advanced by the Union to arbitration on behalf of the grievor. She argued that to view the matter otherwise would be to ignore the essential statutory underpinnings of the arbitration process. That process contemplates the resolution of all disputes by arbitration, as prescribed by the following provision of the Crown Employees Collective Bargaining Act:

7(3) Every collective agreement relating to Crown employees

shall be deemed to provide for the final and binding settlement

by arbitration by the Grievance Settlement Board, without

stoppage of work, of all differences between the parties arising

from the interpretation, application, administration or alleged violation

of the agreement including any question as to whether

a matter is arbitrable.

Ms. O’Rourke made reference to decisions that have considered s. 48(1) of the Labour Relations Act, which, similarly, provides as follows:

Every collective agreement shall provide for the final and

binding settlement by arbitration, without stoppage of work,

of all differences between the parties arising from the

interpretation, application, administration or alleged

violation of the agreement, including any question as

to whether a matter is arbitrable.

6Ms. O’Rourke relied on Dufferin Peel Catholic District School Board & OECTA (2012), 226 L.A.C. (4th) 283 (Davie) and Algoma University and Algoma University Faculty Association (2015), 260 L.A.C. (4th) 3 (Etherington) in support of the Union’s position that the entirety of the matter must proceed to arbitration.

7In Dufferin Peel, the collective agreement contained the following provision:

The Board recognizes the importance of providing a workplace

free from harassment, including sexual harassment, (see Appendix

“D”) which shall apply to all Teachers covered by this Agreement.

It is understood and agreed that any complaints of harassment,

including sexual harassment shall be dealt with in accordance

with the policy and shall not be subject to the grievance and

arbitration procedures under this agreement.

In that case, the union asserted that a claim of harassment ought to properly proceed before an arbitrator, not the internal process provided for in the policy, invoking, s. 48(1). Arbitrator Davie agreed with the union, noting that the collective agreement imposed a contractual obligation on the employer to provide a harassment free workplace. While acknowledging that the collective agreement alone supported the employer’s position that she was without jurisdiction to arbitrate the grievance, Arbitrator Davie concluded that to allow the matter to proceed in a process other than arbitration would be in violation of s. 48(1). Accordingly, she assumed jurisdiction to determine the matter.

8In Algoma University, the issue was whether an internal appeal process relating to tenure precluded a tenure decision being challenged at arbitration. Arbitrator Etherington ruled that it did not, reasoning at paragraph 44 that:

While […] the express language of Article 31.10 clearly indicates

an intention to bar access to arbitration to resolve disputes

concerning tenure, I find this prohibition is void and unenforceable

because it is in violation of s. 48(1) of the OLRA and the

grievance must proceed to arbitration on the basis that article

31:10 of the agreement violates s. 48(1) of the OLRA.

I am satisfied that the grievance before me deals with the

substantive rights of the grievor under the provisions of

the agreement concerning applications for tenure.

Arbitrator Etherington went on, in paragraph 46, to characterize the

tenure provisions of the collective agreement as providing:

… a very important core of rights to applicants to

ensure proper assessment and consideration. To

deny a grievor access to arbitration to deal with

disputes concerning compliance with these provisions

is to deny him/her access to final and binding

settlement by arbitration of differences between the

parties concerning alleged violations of provisions

dealing with substantive rights in the collective agreement.

Ms. O’Rourke submitted that a similar result should prevail in this case.

9In response to Ms. Fay’s submission about the dual routes and potential for conflicting decisions, Ms. O’Rourke suggested that the concern could be addressed by the Board refusing to allow a matter to proceed before it if the individual process had been invoked. This aspect of the matter does not, in her submission, oust the Board’s jurisdiction. Ms. O’Rourke submitted that in addition to the just cause provision, the management rights clause of the Collective Agreement arises in relation to the Employer’s characterization of the preventability of the accident for all purposes. In her submission, an inaccurate characterization of the accident as preventable could be construed as an improper exercise of management rights.

10There is no dispute that the issue of whether the accident was non preventable is properly before me in the context of whether there was just cause for discipline. As reflected in the arbitral decisions provided by Ms. O’Rourke, it is common for arbitrators to determine such issues. There is a clear substantive right at issue in this proceeding and that is the right of the grievor not to be disciplined except for just cause. Is there a further substantive right, created by Article 41.3, that allows for an arbitrator to determine the issue of preventability for all purposes?

11In my view, there is no authority for me to undertake a review of the preventability for all purposes, subject to a potential issue of improper exercise of management rights. As suggested in the J.M. Schneider decision, an employer is generally free to exercise its discretion to characterize an accident as non preventable outside of the labour relations context. An arbitrator has jurisdiction to interpret and apply a collective agreement, albeit in the broad context envisioned in the seminal decisions in Weber and Parry Sound, but not to generally supervise an employer’s operations. The proper analysis in this instance, in my view, is that the Employer has contracted with the Union to subject its management discretion to determine the preventability of an accident for purposes other than discipline to a review as outlined in Article 41.3. There may be potential for a challenge to this review on the basis that it did not take place if requested, or that it was conducted in a way that was arbitrary, discriminatory or in bad faith. However, I am unable to accept the Union’s argument that in this particular context, there is a substantive employment right, other than just cause for discipline, in issue. Article 41.3 does not create an additional substantive employment right. The case before me is clearly distinguishable from Dufferin Peel and from Algoma University, involving respectively, substantive employment rights in relation to a harassment free workplace and tenure. Here, the substantive employment right in issue is the right to be free from discipline, except for just cause. As previously noted, there is no dispute as to my jurisdiction in relation to that aspect of the matter. I am unable to accept the proposition that s. 7 (3) of the Crown Employees Collective Bargaining Act compels me to engage in an assessment as to the preventability of a collision at Metrolinx beyond its effect on that substantive employment right.

12I would note that my comments as to the applicability of the management rights clause and possible non compliance with the process are of a theoretical nature, given that the review process contemplated by 41.3 has not been invoked by the grievor.

13In summary, my role as an arbitrator in connection with this grievance is to determine whether there was just cause for discipline and while I have jurisdiction to decide whether the accident was preventable or non preventable in that context, my jurisdiction does not extend to such a determination for all purposes in relation to the operations of Metrolinx.

14A hearing date is to be scheduled in consultation with the parties.