GSB #2018-1230

Union #G-002-18-CC

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

International Association of Machinists and Aerospace Workers, District Lodge 78 (Martin)

Union

• and –

The Crown in Right of Ontario (Metrolinx)

Employer

BEFORE

Brian McLean

Arbitrator

FOR THE UNION

Ryan Newell Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Bonnea Channe Filion Wakely Thorup Angeletti LLP Counsel

HEARING

January 10, 2019

Decision

1This is an individual grievance regarding the employer’s decision not to offer overtime opportunities to a particular classification of employees - the Customer Services Co-ordinator (CSCs or Tier 3s), the classification in which the grievor worked. The parties made opening statements and made submissions regarding a preliminary issue advanced by the Union. That issue was whether the grievance had been allowed by the Employer in part at the first stage of the grievance procedure when it acknowledged it had made an error in not offering the overtime. This award determines the preliminary issue.

2The employer operates the GO Transit commuter train system in the Greater Toronto Area. The Union represents a bargaining unit of customer service employees who work out of offices in Toronto and Oakville. There are three “Tiers” of employees: Tier 1 employees (Customer Contact Representatives (CCRs), the lowest paid; Tier 2 Customer Service Representatives (CSRs) being the next highest paid and Tier 3 being the highest paid. In general, Tier 1 and 2 employees deal directly with customers answering inquiries about the Go system. Tier 3 employees deal indirectly with customers by, for example, making announcements on social media about issues and features of the system.

3In December of 2017, the Employer realized that it would be short Tier 1 employees on December 30 and 31 of that year. Accordingly, it asked Tier 1 employees whether they would like to work overtime. The response was insufficient to cover the need and the Employer sought volunteers from the Tier 2 group, but not from the Tier 3 group. The Union asserted that this was a violation of the collective agreement’s overtime provisions (Article 22) and was contrary to the Employer’s long standing practice of offering Tier 1 overtime opportunities to both Tier 2 and 3 employees.

4The Employer acknowledged that it once had a practice of offering overtime as the Union asserts. It is the Employer’s position that this is not a requirement of the Collective Agreement. The Employer takes the position that it is no longer appropriate to offer Tier 1 overtime opportunities to Tier 3 employees in large measure because, for a variety of reasons, they no longer have the skills to effectively perform the Tier 1 function. That assertion is disputed by the Union.

5The Grievor filed this grievance alleging that she should have been offered the opportunity to work on December 30 and 31, 2017. The grievance states:

[the employer] has violated the Collective Agreement including but not limited to Article 21. On December 30 & 31 CCR hours were offered to only the CSR’s by way of an email. This did not follow the practice of CCR hours offered to all CSC’s & CSR’s on the same roster. The Union request[s]? 6 hours OT [about $600] be payed [sic] on both of the above dates.

6Derek Taylor provided the Employer’s step 1 response to the grievance. There is no issue as to his authority to respond to the grievance on the Employer’s behalf. The step 1 response states:

The business acknowledges the error and commits to posting overtime for both CSR/CSC classifications if the need arises in future. The business declines the request to pay for the 6 hours requested for each day for the following reasons:

1. We do not believe it appropriate to pay for overtime not worked

2. In 2015 a new VOIP telephone system was implemented. CSCs have not handled CCR calls since prior to that implementation. It is not feasible for CSCs to take CCR calls without training on use of the system and the establishment of agent IDs.

3. Additionally, refresher training would be required for new/updated processes and applications.

7The Union was not satisfied with the Employer’s decision to acknowledge that it had made a mistake, in the absence of payment to the grievor. Accordingly, it advanced the grievance to step 2. The employer’s response at step 2, again made by Mr. Taylor, was the following:

Metrolinx has not had a practice of offering CCR OT hours to CSCs and CSRs since at least 2014. In 2015 processes changed which made it unfeasible for CSCs to perform this work as they do not have the training to do so. As a result the grievance is denied.

8The Union argues that when the Employer responded at Step 1 to the grievance that it had made an error and would in the future offer overtime opportunities to both Tier 2 and 3 employees if the need arose, that was an admission and a remedy which is binding on the Employer. Therefore, in the Union’s submission, the issue of liability has been resolved and the only remaining issue is whether the grievor is entitled to a remedy and, if so, which remedy.

9The Union argues that the reasons given by the employer in both step 1 and step 2 responses all relate to the remedy issue.

10The Union relies on Ottawa Humane Society v. Ottawa-Carlton Public Employees Union (Wheatley Grievance) 2005 CanLII 94124 (ON LA), [2005] 137 L.A.C. (4th) 337 (M.G. Picher) where, during the grievance procedure, the employer withdrew its assertion that the grievor was a probationary employee. Despite that, at arbitration the employer took the position that just cause did not apply when evaluating the termination of the grievor’s employment because the grievor was probationary. The Union objected to the ability of the employer to make that argument, asserting that the employer’s stance during the grievance procedure was binding.

11The arbitrator found in favour of the Union, ruling as follows:

(8) After a careful review of the authorities and the facts presented the arbitrator cannot sustain the position of the Employer. It is true that during the course of the grievance procedure parties do engage in “without prejudice” communication, in the sense that either or both of them may make tentative offers of settlement in the knowledge that such offers are not to be disclosed at arbitration should the matter not be resolved. There is, however, a second dimension to the communications between the parties during the course of the grievance procedure. Either or both of them may withdraw positions taken, by giving the other side notice that a particular issue is no longer to be dealt with at arbitration. For example, if a union makes three separate wage claims on behalf of an employee and, during the course of the grievance procedure, it communicates to the employer that it is withdrawing one of these three claims, the grievance is deemed to be withdrawn to that extent. The union cannot thereafter purport to re-file or reopen that part of the grievance which it has dropped. (cases cited omitted)

(10) As the jurisprudence reflects, the parties must conduct themselves during the course of the grievance procedure in such a way as to respect the process. That process is intended to narrow and define the issues which will ultimately proceed before a board of arbitration if full settlement is not achieved. During the course of that process they are bound by those partial settlements which may be made, and so should not lightly make such partial settlements unless they are willing to be bound by them. If a party which withdraws a position or makes a partial settlement is allowed thereafter to resile from its position, the integrity of the grievance process is substantially undermined. Additionally, the scope and course of the arbitration hearing itself is made substantially less certain, with resulting inefficiencies and potential prejudice to the parties themselves.

In the instant case the Employer, clearly and without reservation or condition, communicated to the Union that it was withdrawing its position with respect to the grievor’s alleged status as a probationary employee. It did that in the face of a prior exchange of correspondence which plainly raised the issue between the parties... For the reasons well articulated in the jurisprudence, to allow the Employer to resile from the position which it communicated to the Union would visit serious mischief on the grievance and arbitration process. The Employer cannot be allowed to resile from its position in these circumstances and more than a union can be allowed to resile from the withdrawal of a grievance.

12To similar effect was Re Air Canada v. C.A.L.E.A. (1980) 1980 CanLII 4091 (CA LA), 27 LAC (2d) 405 (Weatherill) where, during the grievance procedure, the employer formally replied to the grievance by acknowledging that there had been a “violation” of the collective agreement. At arbitration the employer sought to contest whether the collective agreement had in fact been violated and the Union objected.

13In finding for the Union the arbitrator noted that concessions formally made by a party during the grievance procedure were not “settlements” but may have the same effect, writing at paragraph as follows:

The chairman of the third level meeting is not a disinterested neutral, whose decision either party may “appeal” to arbitration. Rather, he is an officer of the company at the level of corporate management and of his decision is to allow the grievance then clearly, under the provisions of the collective agreement, the company is bound by such decision...It is not contemplated that the company, if later not satisfied with its own decision, may reconsider what it has decided by taking the matter to a higher level, or to arbitration.

14Later, he commented on situations, arguably like the one before me, where the employer concedes liability, but not remedy:

Of course, the decision at the third level is not, a “settlement” except in an extended use of the term. It does, however, have the effect of a settlement, and it is binding. The issue to be decided in the instant case, then, is whether or not the fact there was a “split decision”- that the union was successful on the issue on “liability” but not on the issue of compensation - means that when the union proceeds to arbitration on the compensation issue - as it certainly may-the liability issue is thereby revived? In my view it does not. Just as, as the cases cited above have shown, parties may settle some of the issues in a grievance leaving others to be determined at arbitration, so too, in the grievance procedure set out in this collective agreement, some issues in a grievance may be decided leaving others to be arbitrated. The arbitration of the latter does not put the former back into question. The revival of all issues by the arbitration of some would be contrary to the scheme and the purpose of the grievance procedure....

15The Employer argues that Mr. Taylor’s response was not clear and unequivocal and, therefore, it cannot constitute a binding decision on the issue of liability. The Employer submits that it is not clear what the “error” in the first sentence of the step 1 response refers to. Moreover, the Employer argues, the list of reasons written by Mr. Taylor explaining why the grievance was not allowed, go to the issue of liability and not remedy. This, it is argued, is reinforced by the step 2 response which sets out why the employer was not required to ask Tier 3s if they wished to work the overtime shifts. Therefore, in the Employer’s submission, the issue of liability remains a live issue which I need to adjudicate. The employer relies on Laurentian Hospital v. ONA 1997 CanLII 25110 (ON LA), 67 L.A.C. (4th) 289 (Pineau) where the arbitrator allowed the admission of the employer’s third step reply where it raised new grounds for the discharge of the grievor.

DECISION

For the following reasons I find in favour of the Union on this preliminary issue.

16I accept and adopt the reasoning in the cases relied on by the Union to the effect that formal concessions made by parties during the grievance procedure (as distinct from offers to settle made in an effort to resolve a matter which are not accepted) are binding. In my view that is what occurred here. Mr. Taylor accepted that the Employer made an error by not offering the overtime shifts to Tier 3 and agreed to do that in the future. For the reasons stated he did not, however, agree that the result of the error was that compensation should be paid to the grievor.

17I am unable to accept the Employer’s submission that the concession was not clear and unequivocal. Perhaps the first part of the sentence “the business acknowledges the error” might on its own be subject to doubt, however that statement was made in a particular context. That context has two significant aspects. The first is the grievances itself which makes clear what the grievance is about: the fact that overtime hours were not offered to Tier 3 employees. The second clarifying aspect of the context is the remedy provided: the company committed to posting overtime shifts to both groups of employees. As well, in my view, the term “error” is not uncertain in this context. It is equivalent to specifically admitting a breach of the Collective Agreement.

18While the step 2 response, considered in isolation, could certainly apply to the liability issue and is arguably unclear, its meaning is abundantly clear in context. By the time of step 2 response, the Employer had already conceded the error and expressed its future intentions. Those were clear and binding statements. To view them otherwise would be to undermine the integrity of the grievance process. Given the position taken by the Employer at step 1, the only issue left at step 2 was the Union’s claim for compensation for the grievor. Indeed, had the Union not sought compensation by moving the grievance to step 2 the Employer’s concession and remedy at step 1 would be obviously binding and I see no reason why the Union’s decision to seek compensation should change that particularly since the employer did not state that it was changing its mind about liability (assuming that it could have). In that context the step 2 response was clearly a response about why the employer took the position that no compensation was owing. It related only to the matter of remedy, the only outstanding issue at that point.

19In the Laurentian case, on the facts before the arbitrator, the third step grievance reply was accepted into evidence without any finding as to its legal effect. I find it of no assistance in determining the matter before me.

20For all these reasons the Union’s preliminary argument succeeds. The case will proceed if the parties are unable to resolve the issue of liability, as the only issue to be determined is whether the grievor is entitled to compensation for the employer’s failure to ask her whether she wished to work the overtime shifts in question. As noted at the hearing, this decision does not preclude the Employer from arguing that the grievor is not entitled to compensation because she was not trained, in addition to any other arguments that it wishes to advance in relation to remedy.

21The parties should contact the Board in order to schedule more hearing dates if there is no settlement.