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

Arbitrator

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

September 25, 2018

DECISION

1This decision relates to a request by the union that the Board order that the employer recall two of its witnesses who had completed their testimony. To put this issue into context, it is useful to review the background to this proceeding, which is about a policy grievance filed back on June 16, 2008. It is convenient to reproduce that background as set out in the Board`s decision dated October 14, 2015 at paragraph 1-10 as follows:

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 estoppel 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:

2In 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 erroneous language, placed in the agreement as a result of error, should be removed. However, the interpretation that he gave to the rectified article and the ultimate order to the parties to agree on new language in the collective agreement were not reasonable. Accordingly, I would allow the application for judicial review and set aside that part of the award interpreting the rectified article and ordering the parties to agree on new language.

7By way of remedy, the Court directed as fellows at para 41:

41With respect to the remedy of rectification, the only aspect of the decision that is unreasonable is the order to the parties to agree on new language. That aspect of the award is severable from the rest of the award. Accordingly, I would allow the application for judicial review, set aside that part of the award ordering the parties to agree on new language that reflects an all employee O/T unit. This would leave in place the Board’s order that the language of the collective agreements in issue be amended to delete the exclusion of O/T staff from Article 2.1.

8With 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.

9The 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”).

10Once 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.

2In its decisions dated October 14, 2015, and November 01, 2016 the Board determined, for reasons set out therein, that the motion would not be heard as a preliminary matter.

3Therefore, the hearing resumed on January 24, 2017 on the merits of the union’s claim that certain positions treated by the employer as excluded from the bargaining unit, should be included in the bargaining unit. Hearings continued on January 25, 26; October 12, 13, 18, 31; November 6; and December 8 of 2017, during which time the union called five witnesses.

4When the Board convened next on September 25, 2018, union counsel advised that the union was closing its case. The parties requested that the Board address a dispute that had arisen between the parties before starting the employer’s evidence. Union counsel advised that two of the employer’s witnesses, Mr. Brent Morrison and Mr. Graham Walker, who had testified in this proceeding (which resulted in the original decision dated August 12, 2014, and the judgement of the Ontario Divisional Court dated July 27, 2015) had subsequently testified before this Board, differently constituted, with Chair Susan Stewart. The union asserted that those witnesses had given testimony before Chair Stewart which was significantly different than their testimony before me, in relation to matters relevant to the interpretation of the scope of the recognition clause in the collective agreement. Counsel particularly asserted that it came to the union’s attention for the first time during the testimony of the witnesses before Chair Stewart, that in determining whether or not a newly created position was in or outside the bargaining unit, the employer was guided by, and used, two internal documents. It was alleged that in testimony before me, the witnesses had not stated that those documents had been used. Nor had the documents been disclosed to the union.

5Counsel pointed out that on consent the two documents had subsequently been entered as exhibits in the instant proceeding as exhibits 32 and 33. Counsel requested that the Board order that the employer recall the two witnesses in question, so that he would have an opportunity to cross-examine them about the two documents in question and the manner in which they were used.

6During their submissions, from time to time both counsel kept referring to the issue of whether the union was entitled to make further arguments on the interpretation of the recognition clause as rectified, or whether the Board has already interpreted that clause. However as earlier decided by the Board in its decisions dated October 14, 2015 and November 1, 2016, that issue would be argued and decided by the Board at the conclusion of the hearings on the grievance. The issue presently is whether, if the determination is that the union is entitled to further argue the interpretation issue, the union should be given the opportunity to rely on the evidence it seeks to adduce by recalling the two employer witnesses in question. The Board is asked to determine whether the union’s request for an order for recalling those two witnesses, which is opposed by the employer, should be allowed.

7As directed by the Board, the union filed particulars. Employer counsel agreed that for purposes of the motion seeking an order to recall witnesses only, the Board may make its determination based on those particulars. Those particulars are as follows;

Particulars Respecting Exhibits 32 and 33

The following particulars are provided on a without prejudice basis.

Brent Morrison

1. On January 17, 2014, Brent Morrison was called as a witness for Metrolinx to give evidence before Arbitrator Dissanayake in the “Fail to Post” matter.

2. During Mr. Morrison’s direct examination by counsel for Metrolinx, he was asked questions respecting what he used/relied on to determine whether a position was included/excluded from the bargaining unit. In response, Mr. Morrison testified that he would look to Schedules A1 and A2 and Article 9 for guidance as to whether a position was included/excluded from the bargaining unit.

3. Counsel for Metrolinx asked Mr. Morrison whether there was anything in addition to Schedules A1 and A2 and Article 9 that he used for guidance. Mr. Morrison testified before Arbitrator Dissanayake that he did not use anything else to determine whether a position was included or excluded from the bargaining unit.

4. During Mr. Morrison’s direct examination before Arbitrator Dissanayake he also testified that if a job was not similar to a bargaining unit position he would deem it a non-bargaining unit position. He would also look at whether the department had bargaining unit positions.

5. Mark Gallina was present during Mr. Morrison’s testimony before Arbitrator Dissanayake as he was Metrolinx’s advisor on that day.

6. On October 4, 2017, Mr. Morrison was called as a witness for Metrolinx to give evidence in the “UPX/Presto” matter before Chair Stewart.

7. During Mr. Morrison’s direct examination before Chair Stewart he identified that there was in fact a document that he referred to in determining whether a position was included or excluded from the bargaining unit. This document is Exhibit 33.

8. Mr. Morrison testified before Chair Stewart that he referred to Exhibit 33 “frequently”.

9. Mr. Morrison testified before Chair Stewart that Exhibit 33 set out the “nature of the work” that would prevent a position from being included in the bargaining unit. Mr. Morrison stated that Exhibit 33 contained the “criteria about whether [a] job [was] included or excluded” and “[t]hat would have been [the] criteria that kept it out of the Union”.

Graham Walker

10. On April 25, 2014, Graham Walker was called as a witness for Metrolinx to give evidence before Arbitrator Dissanayake in the “Fail to Post” matter.

11. Mr. Walker did not give any evidence before Arbitrator Dissanayake related to Exhibit 33.

12. Mr. Walker testified before Arbitrator Dissanayake that he did not have a role in the development of new positions.

13. Mr. Walker testified before Arbitrator Dissanayake that he would speak to Mr. Morrison and ask him how he came to determine whether a new position was included or excluded from the bargaining unit. Mr. Walker testified that Mr. Morrison would state that he tried to find a comparable job in the bargaining unit, and if he couldn’t, he would deem it a non-bargaining unit position.

14. Mark Gallina was present during Mr. Walker’s testimony before Arbitrator Dissanayake as he was Metrolinx’s advisor on that day.

15. On January 31, 2018, Mr. Walker was called as a witness for Metrolinx to give evidence in the “UPX/Presto” matter before Chair Stewart.

16. Mr. Walker testified before Chair Stewart that he gave Exhibit 33 to Mr. Morrison.

17. Mr. Walker testified before Chair Stewart that Exhibit 33 was a guide to help determine whether a position was in the bargaining unit. Mr. Walker testified that Exhibit 33 was “just to get the managers to really focus on whether it is unionized or non-bargaining unit”.

Mark Gallina

18. Mark Gallina was Metrolinx’s advisor and present on January 17 and April 25, 2014, during the evidence of Mr. Morrison and Mr. Walker in the “Fail to Post” matter before Arbitrator Dissanayake.

19. Mr. Gallina did not give evidence in the “Fail to Post” matter before Arbitrator Dissanayake.

20. On February 7, 2018, Mr. Gallina was called as a witness for Metrolinx to give evidence in the “UPX/Presto” matter before Chair Stewart.

21. Mr. Gallina testified before Chair Stewart that he drafted Exhibit 32 in 2010 or 2011.

22. Exhibit 33 is copied into Exhibit 32. Therefore, Mr. Gallina has been aware of the existence of Exhibit 33 since in or around 2010, and was aware of Exhibit 33 when Mr. Morrison and Mr. Walker gave evidence in the “Fail to Post” matter before Arbitrator Dissanayake.

23. However, Mr. Gallina did not produce Exhibits 32 or 33 to the Union in the “Fail to Post” matter nor did he advise Arbitrator Dissanayake that Exhibits 32 or 33 existed.

24. Mr. Gallina testified before Chair Stewart that he drafted Exhibit 32 “for the purpose of helping out total rewards person [compensation analysist] make the distinction of whether a person should be in or out of the bargaining unit”.

25. Mr. Gallina testified before Chair Stewart that Exhibit 32 was “to capture the processes or criteria that had been used to, at that time, to identify whether a position would be in or not” as well as “helps [Metrolinx] identify the type of positions that have been included historically and therefore would likely be similar to new positions.

26. Mr. Gallina also testified that his advice as to whether new position would be included in the bargaining unit included whether it “makes labour relations sense to include the position” in the bargaining unit. Mr. Gallina confirmed that it would make labour relations sense to include a new position in the bargaining unit where the new position works side by side with bargaining unit members or reports to the same supervisor.

8It was agreed that the following should be added to the union’s particulars: “Exhibit 33, being the document titled, “Confidential Labour Relations and Confidential Interest Examination”, was received by Graham Walker from Go Transit/Metrolinx legal counsel sometime between 2002 and 2005”.

9Although reference was made to two documents, exhibits 32 and 33, the focus was on exhibit 33 which the parties agreed had existed since at least 2005. It reads as follows:

CONFIDENTIAL LABOUR RELATIONS AND

CONFLICT OF INTEREST EXAMINATION

Determine whether the following duties/responsibilities fall within the employee’s position:

1. Does the employee perform duties that involved confidential information pertaining to employee relations? For example:

• grievances/employee complaints

• hiring/firing

• bargaining and preparation for bargaining (i.e. Preparation of supporting data)

• attendance at management meetings where bargaining issues and strategies are discussed

• transcribing and/or otherwise handling minutes of management minutes

• dealing with correspondence that contains information related to labour relations

• interpreting/administering collective agreements

• preparing reports and manipulating data relating to staff/position changes, salary projections, staff retirements, costing

• budget projections

• resolving employee concerns on any LTD/WSIB/pension issues

• knowledge regarding lay-offs, cutbacks, contracts with outside parties

2. Does the employee perform duties that involve confidential information in other aspects of the business? For example:

. legal settlements

. operational decisions

. confidential information regarding management employees

. confidential information regarding bargaining unit employees

For all of the information collected above, determine the following:

• How much of the employee’s time is spent on these duties?

• Are these duties a regular part of the employee’s position?

• Does the employee have access to the information only or does the employee actually use the information to perform his/her job?

• Is the information to which the employee has access made available to the union?

• Will the information used by the employee be provided to the public, such that it loses its confidential nature?

10The evidence is that well after the filing of the instant grievance, sometime in 2010-11 exhibit 32 was created by the employer by adding the following to the content of exhibit 33:

As per the Crown Employees Collective Bargaining Act, employees who exercise managerial functions or are employed in a confidential capacity in relation to labour relations” are excluded from any bargaining unit. In addition, the exclusions at s.1.1(3) of CECBA also include the following general exclusion:

Other persons who have duties or responsibilities that, in the opinion of the Ontario Labour Relations Board, constitute a conflict of interest with their being members of a bargaining unit.

Perhaps in accordance with this general exclusion, a practise has emerged whereby, with the introduction of a new position, a decision as to that position’s inclusion or exclusion is made in the Compensation Office. Although not formalized, the following criteria have been used:

. Included if position is mostly clerical in nature

. Coordinators are usually included

. Administrators are usually included

. Administrative assistant are excluded

. Excluded if employee contributes or is exposed to long range planning

. Excluded if involves research

. Excluded if work involves legal settlements

. Excluded if work involves operational decisions

. Excluded if work involves exposure to staff or position changes, salary projections, staff retirements, budget projections, layoffs, cutbacks, contracts with third parties, resolution of employee concerns regarding LTD, WSIB or pension issues.

. Excluded if belonging to any of the specifically excluded groups at section 1.1(3) of CECBA.

Since exhibit 32 post-dates the filing of the grievance, hereafter I would only be referring to exhibit 33.

11Counsel for the union submitted that if Mr. Morrison used exhibit 33 in deciding whether the positions in issue in this proceeding were in or out of the bargaining unit as he testified before Chair Stewart, it is arguably relevant and should have been produced by the employer. Unfortunately, it did not do so, and the union became aware of it only in 2017 during the Chair Stewart hearing. Therefore, the union was deprived of an opportunity to cross-examine Mr. Morrison about his use of the document. Counsel argued that evidence relating to Mr. Morrison’s use of exhibit 33 is also relevant to the Board’s interpretation of what jobs are included in the bargaining unit under article 9 of the collective agreement. Counsel submitted that in the circumstances the evidence before the Board at present is inaccurate. Mr. Morrison’s testimony that he did not refer to anything other than schedules A-1 and A-2 in deciding whether to include or exclude newly created positions is grossly in error. For the Board to decide the grievance on the basis of such erroneous evidence would be unfair and would result in a grave miscarriage of justice.

12Employer counsel agreed that pursuant to s. 48(12) of the Labour Relations Act the Board has jurisdiction to order that witnesses who had completed their testimony be recalled in appropriate circumstances. The issue is whether the Board should exercise that jurisdiction in the particular circumstances of this case. He submitted that the Board should not exercise that jurisdiction. Counsel submitted that the only error the union points to relates to the evidence of Mr. Morrison in this proceeding that he did not use anything other than the two schedules when deciding whether new positions are in or out of the bargaining unit. It is alleged that in the Chair Stewart proceeding Mr. Morrison had testified that he used exhibit 33 frequently.

13Counsel pointed out that the union does not allege that what Mr. Morrison stated before Chair Stewart negates any of his testimony in this proceeding. There is no claim that Mr. Morrison testified in the Chair Stewart proceeding that he used only exhibit 33. Thus, the alleged error is only to the effect that he failed to mention in this proceeding that he also used exhibit 33. While Mr. Morrison may have stated in the Chair Stewart proceeding that he frequently referred to that exhibit, there is no evidence that he testified as to the purpose for that frequent reference.

14Employer counsel submitted that there is absolutely no basis for ordering that Mr. Walker be recalled, since there cannot be, and there is no suggestion, that he gave contradictory evidence in the two proceedings. The union claims that Mr. Walker testified before Chair Stewart that he gave exhibit 33 to Mr. Morrison and described exhibit 33 as a guide to help determine whether a position was in the bargaining unit. The union particulars also confirm that in this proceeding Mr. Walker did not give any evidence related to exhibit 33.

15Counsel submitted that if Mr. Morrison did in fact use exhibit 33 it is irrelevant in this proceeding, which relates to seven specific newly created positions. Exhibit 33 is only about exclusion of positions from the bargaining unit pursuant to the Crown Employees Collective Bargaining Act on the basis of “confidential” duties. The union is not relying on CECBA in claiming that any of the seven positions are included in the bargaining unit. Rather, its argument is that the new positions perform duties very similar to those performed by existing bargaining unit positions, and are in reality the same positions although with different position titles. Therefore, whether or not Mr. Morrison used exhibit 33, or how he used it, would have no relevance to that issue.

16In reply, union counsel asserted that evidence to the effect that Mr. Morrison in fact used exhibit 33 does serve a useful purpose, in that it would support the position the union has always taken, that Mr. Morrison made his decisions based solely on the CECBA criteria for exclusion. Before Chair Stewart, Mr. Morrison had testified that the nature of the duties that would exclude a position from the bargaining unit is described in exhibit 33. In this proceeding Mr. Walker also spoke only about comparable jobs in the bargaining unit. However, in the Chair Stewart arbitration he testified that exhibit 33 was a guide in determining whether a position is in or out of the bargaining unit.

17DECISION

The parties are in agreement that the Board has the jurisdiction to order the recall of a witness. The issue, therefore, is whether the Board should exercise its discretion in the particular circumstances.

18The union counsel’s argument that denial of its request that Mr. Morrison and Mr. Walker be recalled would result in unfairness and a miscarriage of justice is based on his assertion that in this proceeding Mr. Morrison testified that in making his decisions he only looked at whether there was a bargaining unit position which was comparable, and when asked whether he looked at anything else other than the two schedules he stated that he did not. The particulars, accepted by the employer for purposes of this motion, show that contrary to that testimony, Mr. Morrison did use exhibit 33. Thus counsel submits that in this proceeding Mr. Morrison’s evidence was that he made his decision solely based on existence of comparable union positions. Therefore, if Mr. Morrison is not ordered recalled, the Board would be deciding the grievance based on untrue evidence. Similarly, Mr. Walker appeared to support Mr. Morrison’s inaccurate testimony, by not referring to exhibit 33 in this proceeding and limiting his testimony to comparable bargaining unit positions.

19I have reviewed my notes on Mr. Morrison`s testimony before me tendered on January 17, 2014. His testimony was very brief and he was not cross-examined. In chief, the following exchange took place as per my notes:

Q: Did you ever have to decide whether a job is in or out of the bargaining unit?

A: Yes.

Q: How was that decided?

A: Ill look for similar jobs if the position is unionized. If there was no similar unionized jobs Ill make it non-bargaining unit.

Q: Recall examples of departments that had unionized jobs?

A: IT, Communications, Finance.

Q: Any departments that were not unionized?

A: Yes. Legal, Human Resources, anyone reporting to executive. I believe rail services and strategic planning were also not unionized.

Q: What other things did you look at when deciding?

A: If the job supervises or makes recommendations on workforce planning those are deemed to be non-union. Also jobs that are highly confidential – if a position is involved in planning bus routes and driver services for example.

Q: Did you look at anything in the collective agreement for guidance?

A: Only schedules A-1 and A-2 which list union jobs.

Q: Anything else in the collective agreement?

A: No.

Q: What is article 9?

A: That is about how we evaluate union jobs to assign a pay rate.

Q: Did anything in article 9 help you decide if a job is in or out?

A: No.

Q: Did you use anything else to make your decision?

A: I believe thats it.

Q: Is it your decision whether a position is in or out of the union?

A: Its in partnership with the department. As I was experienced they trusted me.

20Although Mr. Morrison testified that he did not look at “anything else”, and did not mention referring to Exhibit 33, his testimony was not to the effect that he only looked at comparable bargaining unit positions as union counsel asserts. Although not mentioning any particular document or the CECBA, he did testify that positions that had “supervision” and positions that were “confidential” were excluded. Whether he considered those criteria by referring to exhibit 33, some other document or case law, or his familiarity with the CECBA provisions, that in my opinion would not be of significance. Mr. Morrison has testified before the Board that in addition to considering the existence of comparable union positions, he considered the criteria of managerial and confidential exclusions.

21In the circumstances, it was open to the union, if it was of the view that Mr. Morrison made his decision solely based on the CECBA criteria, to have cross-examined him. Moreover, as employer counsel pointed out, the seven positions in dispute are not being claimed by the union based on the CECBA. Its position is that those positions are very similar to existing bargaining unit positions, and that they should be included in the bargaining unit on that basis. The union is certainly entitled to establish that the comparison with union positions undertaken by Mr. Morrison and his conclusion based on the comparison was incorrect. As noted, Mr. Morrison had testified that he did the comparison in making his decisions. If the union so wished, it was open to it to challenge Mr. Morrison on that evidence. The absence of exhibit 33 or testimony from Mr. Morrison that he used it did not deprive the union of the opportunity of doing so. If Mr. Morrison and/or Mr. Walker are ordered recalled their examination would not provide the union a second opportunity for an open-ended cross-examination. Any examination would necessarily be strictly limited to exhibit 33 and Mr. Morrison’s use of it. These related only to managerial and confidential CECBA exclusions. Since the union’s claim is not based on CECBA that evidence will not serve any useful purpose. Recalling of witnesses is an extra-ordinary departure from the norm, and is not to be resorted to in these circumstances.

22For the foregoing reasons the Board is of the view no unfairness or miscarriage of justice would result unless the requested order is granted. The request is, therefore, denied.