GSB# 2015-1991

UNION# G-40-15-COR

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union – Local 1587 (Policy)

Union

• and -

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

Employer

BEFORE

Susan L. Stewart

Chair

FOR THE UNION

Dean Ardron and Kristen Allen Ursel Phillips Fellows Hopkinson LLP Co-Counsel

FOR THE EMPLOYER

Richard J. Charney Jennifer Hodgins (until November 2019) Sadaf Samim (March 2020 and following) Norton Rose Fulbright Canada LLP Co-Counsel

HEARING DATES

Mar 22, Sept 6, 7, 19, Oct 4, 16, 2017; Jan 30, Feb 7, Mar 21, Oct 22, 2018; May 28, July 3, 4, 5 Sept 5, Nov 13, 14, 2019; Mar 10, Oct 22, Dec 8, 10, 16, 2020; Feb 10, Mar 10, 12, June 2, 2021

DECISION

1The grievance before me is dated September 15, 2015, and states as follows:

The Union hereby grieves the Employer’s employment of non-bargaining unit employees, and/or the Employer’s improper contracting out of bargaining unit work, with respect of Presto. The Union also grieves the Employer’s failure to post and recognize all bargaining unit positions respecting Presto in accordance with the Collective Agreement, and its violation of the seniority and posting and filling of vacancies provisions of same.

A Union grievance claiming bargaining rights in relation to Union Pearson Express was initially before me. However, that matter was resolved by the parties late in these proceedings.

2The Collective Agreement between the parties under which this grievance arose is for the term June 2, 2014, to June 1, 2018. The Collective Agreement sets out the Employer party on its cover page as: “GO Transit A Division of Metrolinx”. A memorandum between the parties contained therein setting out the term of the Collective Agreement, at p. 5, was signed by Union officials on January 8, 2015. It refers to the Employer as “GO Transit (hereinafter referred to as the “Employer” or the “Corporation”)”. The recognition clause is set out in Article 2.1 and the language to be interpreted is as follows:

The Employer recognizes the Union as the exclusive bargaining agent for all employees of the Employer employed in the Province of Ontario as specified in Schedule “A1” and “A2”, or as developed through the application of Article 9, save and except supervisors and persons above the rank of supervisor, employees represented by the International Association of Machinists and Aerospace Workers, Local 235 as of January 2, 2002, students, and persons excluded by the Crown Employees Collective Bargaining Act, 1993.

I have described the clause as “to be interpreted” because the foregoing is reflective of a rectification of the language, the basis for which will be outlined below. Schedule A1 of the Collective Agreement sets out GO Transit position titles, along with associated pay rates and Schedule A2 sets out office and technical positions with the applicable pay level. Article 9 of the Collective Agreement sets out a classification and job evaluation procedure and contemplates the integration of newly created bargaining unit positions.

3At issue between the parties is whether the Union’s bargaining rights extend to the PRESTO division of Metrolinx and, if so, whether certain positions properly fall within the scope of the Collective Agreement. As described below, PRESTO became a division of Metrolinx in 2011. While the term “PRESTO division” was utilized throughout this proceeding and is utilized in this decision, the existence of a division in a meaningful sense is at the heart of this dispute.

4As set out in paragraph 3 of its written submissions, the Union’s position is that:

… Local 1587’s bargaining rights attach to the work associated with specific positions, and not [emphasis in the original] the title or division assigned to a position by Metrolinx. There is simply nothing in the recognition clause or Collective Agreement more broadly that limits Local 1587’s bargaining rights to what Metrolinx defines as the “Go Transit Division”. The evidence in this proceeding further establishes that Metrolinx’s designation of Presto as a separate “division “has no legal or labour relations significance. Presto is functionally integrated into Metrolinx. Existing bargaining unit members do work to support Presto services. Positions assigned to Presto – just like positions assigned to any other “line of business”, “department”, “brand”, “group “, “shared service “or other corporate construct created by Metrolinx - are caught by the recognition clause if they are similar to or analogous to the positions contained in Schedule A1 or A2 or otherwise perform bargaining unit work to the extent that they are brought into the unit.

5The Employer’s position is set out at paragraphs 6 and 7 of its written submissions as follows:

In these proceedings, the Union is attempting to extend its bargaining rights beyond those rights conferred on the Union by the recognition clause of the collective agreement between the parties. This is in contravention of the fundamental principles of labour law.

This is not a case of a union seeking the accretion to the bargaining unit. This is a case where the Union is seeking to have its rights extend beyond the division to which they have always been, and currently are, exclusively assigned – being GO Transit. This is without taking the steps required by labour laws to properly become the bargaining agent of these employees.

With respect to the Collective Agreement language, the Employer’s position is set out in the following excerpt from paragraph 36 of its submissions:

The recognition clause references GO Transit and that is the division to which bargaining rights attach. The word “Employer” in the recognition clause is capitalized because it is a defined term. On page 5 of the collective agreement, GO Transit is defined as the “Employer” and all references to “Employer” throughout the collective agreement are references to GO Transit. The reason the collective agreement references GO Transit as the “Employer” is because GO Transit is the division of Metrolinx to which the Union’s bargaining rights attach.

6The Union initially claimed that 27 positions in the PRESTO division fall within its bargaining unit, however that initial claim was narrowed to 6 positions. Those positions, are reflected in the following chart, with the PRESTO positions on the left and the bargaining unit positions on the right:

Disputed Position	Bargaining Unit Position Performing Substantially Similar or Analogous Work
Customer Communications Specialist	Communications Coordinator
Administrative Assistant	Secretary
Settlement Clerk	Treasury Officer/Revenue Services Officer
Settlement Analyst	Treasury Officer/Revenue Services Officer
Senior Finance and Contract Officer	Project Coordinator
Senior Vendor Performance Analyst	Project Coordinator

It is the position of the Union that the work of these PRESTO positions is similar to, or analogous to, positions referred to in Schedule A1 or A2 of the Collective Agreement or otherwise entails the performance of bargaining unit work. While the Employer’s fundamental position is that bargaining rights do not extend beyond GO Transit, it is its alternative position that similar or analogous work to the Schedule A1 or A2 positions referred to in the Collective Agreement is not performed in the PRESTO positions and/or they are outside the scope of the grievance.

7This matter proceeded over many days, however the parties were able to expedite their presentations of the facts by utilizing “will say” statements. I had the benefit of both detailed evidence and of thorough submissions in considering this grievance. This decision addresses what I considered to be the most important aspects of both.

The History of the Union’s Bargaining Rights, the Structure of GO Transit and the Establishment of Metrolinx

8GO Transit, a regional public transit service, began in 1967 as a train service operated directly by the Ontario Ministry of Transportation. In 1970, a bus service was added. GO Transit had a longstanding collective bargaining relationship with the Union that predated the existence of Metrolinx. GO Transit underwent a number of changes during the course of that relationship, most notably being “downloaded” from the province to the municipal level, upon which the Union was voluntarily recognized and the collective agreement continued in effect. That downloading was subsequently reversed during the term of the 2000-2003 collective agreement, with GO Transit returning to the status of a provincial agency and hence governed by the Crown Employees Collective Bargaining Act. At that time, the recognition clause provided as follows:

The Employer recognizes the Union as the exclusive bargaining agent for all employees of the Employer employed in the Province of Ontario as specified in Schedule “A”, or as developed through the application of Article 9, save and except supervisors and persons above the rank of supervisor, office and technical staff (save and except classifications specified in Schedule “A”), and persons excluded by the Ontario Labour Relations Act as amended 1995.

9Following this change of statutory governance, the Union sought and obtained certification from the Ontario Labour Relations Board and in paragraph 1 of a decision dated February 28, 2002, the Board made the following reference to the bargaining unit:

Having regard to the agreement of the parties, the Board further finds that:

All employees of GO Transit employed in the Province of Ontario, save and except supervisors and persons above the rank of supervisor, employees in bargaining units represented by the International Association of Machinists and Aerospace Workers, Local 235 as of January 2, 2002 and persons excluded by the Crown Employees Collective Bargaining Act, constitute a unit of employees of the responding party appropriate for collective bargaining.

A memorandum of settlement dated April 19, 2002, between GO Transit and the Union, provided for the amendment of the recognition clause to reflect the decision of the Ontario Labour Relations Board and the transfer of the governing legislative framework of GO Transit from the Labour Relations Act to the Crown Employees Collective Bargaining Act. On April 18, 2002, signed off the following day, the parties agreed to the following provision:

2.1 Effective January 1, 2002, The Employer recognizes the Union as the exclusive bargaining agent for all employees of the Employer employed in the Province of Ontario as specified in Schedule A2, or as developed through the application of Article 9, save and except supervisors and persons above the rank of supervisor, employees represented by the International Association of Machinist and Aerospace Workers, Local 235, as of January 2, 2002, persons excluded by the Crown Employees Collective Bargaining Act, 1993.

The next Collective Agreement, for the term 2003-2007, described the Employer party on its cover page as GO Transit and the recognition clause was amended to provide as follows:

The Employer recognizes the Union as the exclusive bargaining agent for all employees of the Employer employed in the Province of Ontario as specified in Schedule “A1” and “A2”, or as developed through the application of Article 9, save and except supervisors and persons above the rank of supervisor, office and technical staff (save and except classifications specified in Schedule “A1” and “A2”), employees represented by the International Association of Machinists and Aerospace Workers, Local 235 as of January 2, 2002, students and persons excluded by the Crown Employees Collective Bargaining Act, 1993.

10The amended clause was carried over to the following 2007-2011 collective agreement, in which the Employer party was described in the same way. Of note, but without direct implications for the dispute before me, is that the recognition clause as amended in the 2003-2007 collective agreement provided for the exclusion of office and technical employees. That was the subject of a proceeding before this Board, in Metrolinx v. Amalgamated Transit Union, Local 1587, [2014] OGSBA No. 92 (Dissanayake), wherein it was concluded that the exclusion of office and technical employees resulted from a mistake. It was determined that rectification was appropriate in the circumstances and the Board ordered the removal of the exclusion. This aspect of the decision was upheld on judicial review: Metrolinx v. Amalgamated Transit Union, Local 1587, [2015] OJ No. 3971 (Divisional Court). The recognition clause was interpreted by Arbitrator Dissanayake in Amalgamated Transit Union – Local 1587 v. Ontario (Metrolinx – GO Transit), [2020] OGSBA No. 60, in the context of a claim that certain positions within GO Transit properly fell within the bargaining unit. As noted at pp. 4 and 5 of the Union’s submissions, that decision concluded that positions could fall within the bargaining unit if they were similar to or analogous to existing bargaining unit positions.

11The Greater Toronto Transportation Authority was created in 2006. It subsequently became known as Metrolinx. Metrolinx assumed responsibilities for GO Transit on May 14, 2009, and became the legal entity that was the employer of Go Transit employees. Its objects are set out in s. 5(1) of The Metrolinx Act, 2006, S.O. 2006, c.16 as follows:

(a) to provide leadership in the co-ordination, planning, financing, development and implementation of an integrated transit network in the regional transportation area that,

(i) conforms with transportation policies of growth plans prepared and approved under the Places to Grow Act, 2005 applicable in the regional transportation area,

(ii) conforms with other provincial transportation policies and plans applicable in the regional transportation area, and

(iii) supports a high quality of life, a sustainable environment and a strong, prosperous and competitive economy;

(b) to act as the central procurement agency for the procurement of local transit system vehicles, equipment, technologies and facilities and related supplies and services on behalf of Ontario municipalities;

(c) to be responsible for the operation of the regional transit system and the provision of other transit services; and

(d) to provide other advice and services in accordance with section 8.2

The Act goes on to provide as follows:

Dissolution of GO Transit

43 (1) GO Transit is hereby dissolved.

Corporation assumes GO Transit’s rights, obligations, etc.

44 (1) All assets, liabilities, rights and obligations of GO Transit, including contractual rights, interests, approvals, registrations and entitlements, that exist immediately before the dissolution of GO Transit continue as the assets, liabilities, rights and obligations of the Corporation, and are hereby transferred to the Corporation, without compensation.

Application of s. 69 of Labour Relations Act, 1995

(2) The transfer under subsection (1) is deemed to be a sale of a business under section 69 of the Labour Relations Act, 1995 and section 69 of the Labour Relations Act, 1995 applies to the transfer.

No change of control

(3) The dissolution of GO Transit and transfer of its assets, liabilities, rights and obligations to the Corporation shall not constitute a change of control of GO Transit in respect of any asset, liability, right or obligation of GO Transit referred to in subsection (1).

Employees continued

45 (1) The employees of GO Transit immediately before the dissolution of GO Transit are employees of the Corporation as of the dissolution. 2006, c. 16, s. 45 (1).

Same

(2) For all purposes, including the purposes of an employment contract, a collective agreement and the Employment Standards Act, 2000, the employment of the employees of GO Transit is not terminated and those employees are not constructively dismissed because of the transfer under subsection (1).

Same

(3) For all purposes, the employment of the employees described in subsection (1) immediately before and after the dissolution of GO Transit is continuous.

Same

(4) The terms and conditions of employment for each of the employees described in subsection (1) immediately before the dissolution of GO Transit continue to be the terms and conditions of their employment with the Corporation as of the dissolution.

12In advance of the 2009 transition, the Managing Director and CEO of GO Transit sent a memorandum to all staff, which states in part as follows:

Many of you will have seen the recent announcement that the Greater Toronto Transportation Authority (GTTA) will now be known as 'Metrolinx'. This is just part of the 'branding' of the organisation as they begin to develop their plans for coordination of transportation in the GTA. For those who are not clear what the responsibilities of Metrolinx are, the Greater Toronto Transportation Authority Act, 2006 describes Metrolinx's primary responsibilities as being:

• to co-ordinate, plan, finance and develop an integrated, multi-modal transportation network; and

• to act as the central procurement agency for the procurement of local transit system vehicles, equipment, technologies and facilities and related supplies and services; and

• to implement and operate the Presto farecard system.

Although Metrolinx will be very busy working on these issues, it is still planned that, at some point in time, their Board will become responsible for overseeing GO Transit's operation. When (and if) this transition occurs, the governing legislation has been written to ensure that GO employees are protected, employment is continuous and the collective agreements remain in full force.

Events Following the Transition to Metrolinx as the Employer

13Following the transition, a Metrolinx Employee Relations Consultant sent a letter dated September 21, 2009, to the Registrar of the Ontario Labour Relations Board, with a copy to the Union president, advising as follows:

This is in reference to the Collective Agreements between GO Transit and Amalgamated Transit Union Local 1587 in effect between June 2, 2007 and June 1, 2011…

As a result of the Greater Toronto and Hamilton Area Transit Implementation Act, 2009 (“Bill 163”) being given Royal Assent on May 14, 2009, all assets, liabilities, rights and obligations of the Greater Toronto Transit Authority (operating as GO Transit) were transferred to Metrolinx effective May 14, 2009. In addition, the corporate entity Greater Toronto Transit Authority was dissolved…

Therefore, as of May 14, 2009, the above mentioned Collective Agreement [between the parties] shall reflect the transfer from Greater Toronto Transit Authority (GO Transit) to Metrolinx.

The parties shall now be referred to as Metrolinx (GO Transit) and the Amalgamated Transit Union, Local 1587…

14The parties subsequently engaged in collective bargaining for the 2011-2014 Collective Agreement. Their signed memorandum of settlement, dated June 1, 2014, describes the Employer party as “GO Transit, a Division of Metrolinx”. Mr. D. Harris, Vice President and Grievance Officer of the Union at the time, testified that the document was prepared by the Employer and that there was no discussion about what it meant. He also testified that there was no discussion about divisions or lines of business, but that he considered the Union’s bargaining rights to apply to all of Metrolinx. He acknowledged in cross-examination that he did not seek clarification regarding the fact that the language included reference to the GO Transit Division, rather than simply to Metrolinx. The renewal Collective Agreement, for the term June 2, 2014 to June 1, 2018, also refers to the Employer as “GO Transit A Division of Metrolinx” on the cover page. There are eight Letters of Agreement in the Collective Agreement that refer to the Employer party as “GO Transit” or “Metrolinx (GO Transit). There are two Letters of Agreement in the Collective Agreement that do identify “Metrolinx” as the Employer, however both of those letters contain a signature block for “GO Transit, A Division of Metrolinx”.

The Structure of Metrolinx

15Metrolinx is governed by a Board of Governors. As previously noted, Metrolinx characterizes PRESTO as a division of its operations. Union Pearson Express, established in 2010, and GO Transit are also characterized as divisions. In brief, the Executive Vice President of PRESTO reports to the CEO of Metrolinx, as do the Chief Operations Officers of GO Transit and Union Pearson Express. Metrolinx is the legal employer of all of those employed within the organization. It provides services to all divisions in certain respects, including customer communications, marketing, public relations, human resources information technology, treasury and procurement. All those employed under the Metrolinx umbrella have a Metrolinx email address. Metrolinx has a corporate bank account that is utilized in connection with certain expenditures of the divisions. The Metrolinx Board of Governors has established a committee that provides oversight and guidance in relation to PRESTO operations. However, the Board of Governors has the ultimate decision making power in relation to PRESTO.

The Structure of PRESTO

16PRESTO is an electronic fare payment system. It has its origins in the Ministry of Transportation. In 2002, a task force composed of GO Transit, along with the municipalities of Mississauga, Oakville and York Region, was established to develop a fare card which would allow for seamless transfer across multiple transit systems. In 2006, Accenture was awarded a contract to design, build and operate the PRESTO electronic fare system. A contractual relationship with Accenture continues. Along with GO Transit, the following 10 transit systems currently utilize a Presto fare card: Brampton Transit, Burlington Transit, Durham Region Transit, Hamilton Street Railway, MiWay (Mississauga Transit), Oakville Transit, OC Transpo (Ottawa), Toronto Transit Commission, UP Express, and York Region Transit. PRESTO has contractual service agreements with the 11 transit systems and, in essence, it is responsible for collecting money and redistributing the funds. As noted in paragraph 23 of its submissions, the Union does not dispute: “… that PRESTO services, broadly speaking, are aimed at overseeing the design and architecture of the fare payment system and its utilization across 11 transit systems”.

17The initial roll out of PRESTO was on November 30, 2009, when it became available to participating transit systems. Accordingly, it existed as an independent entity before it became part of Metrolinx in June, 2011. The Metrolinx Act, in s. 7, required it to acquire a unified fare system. Currently, there are approximately 300 employees in the PRESTO division. All of these employees ultimately report to the Executive Vice President of PRESTO who, as previously indicated, reports to the CEO of Metrolinx. PRESTO has a separate annual budget, capital funding and funding approval process. It operates on its own revenues and commissions. It manages a bank account separate from Metrolinx’s corporate account. Its capital funding requests to Treasury Board are not bundled with Metrolinx or any of its divisions and are submitted by the Ministry of Transportation. However, PRESTO’s budget is endorsed by the Metrolinx Board of Governors.

18Within PRESTO, there exists what is described as a “scheme governance” system, where decisions are made on fare integration, policies, and cross border travel, as well as strategic direction. PRESTO is one of the voting members. The other voting members of this governance committee are UP Express, GO Transit, TTC, OC Transit and the 905 transit agencies as a group, with one vote. Decisions require support of all voting members. Mr. F. Ebraemi, Vice President, Delivery, testified that Metrolinx does not have the authority to overturn any decisions made by this committee. Cross-examination elicited uncertainty as to the source of that assertion, however there is no doubt as to the existence of the scheme governance system.

The Relationship between GO Transit and PRESTO and Metrolinx

19The Union acknowledges that PRESTO is not involved in the direct provision of public transit services but describes it as “an integrally related product”. At pp. 13-16 of its submissions, the Union sets out a summary of the extensive evidence that was adduced relating to the manner in which work is performed within Metrolinx, including the interplay between GO Transit and PRESTO. The Employer’s summary appears at pp. 18-23 of its submissions.

20The PRESTO devices were built, designed and installed by contractors or subcontractors of PRESTO. However, GO Transit employees were involved in the rollout of PRESTO devices in GO stations and facilities and on GO buses, including responsibility for IT. GO Transit bargaining unit members have been involved in over 5000 cases or incidents of maintaining PRESTO machines at GO Transit stations. Support services for ticket vending machines, which are PRESTO integrated devices, has been provided by the bargaining unit position of Network Administrator. The GO Transit Network Administrator was also involved with the PRESTO integration project and the provision of IT assistance for handheld devices used by unionized members to check fares on a PRESTO card. Maintenance within GO Transit is limited, however. If there is an issue with a PRESTO component or software, the matter must be addressed by PRESTO. However, as the Employer submissions emphasized, the involvement of the transit agency is required when PRESTO devices are rolled out. There was no suggestion that GO Transit bargaining unit members provided similar assistance to PRESTO’s external clients, such as the TTC.

21As noted above, there are a number of services provided by Metrolinx to both GO Transit and PRESTO. Evidence was adduced about aspects of the shared services, exemplified as follows. Communications, including multimedia are integrated and may include any of the “brands”. One person is identified on Twitter as speaking on behalf of GO Transit, PRESTO and UP Express. Metrolinx’s business technology department provides basic IT support for all employees of Metrolinx, including those within PRESTO. That department does not have the ability to assist with the PRESTO network. That network is administered separately by PRESTO, and deals with the provision of fare technology in serving its clients and customers. Testing co-ordination within PRESTO requires contact with GO Transit. Such contact is required with other transit clients as well. Evidence was adduced to the effect that bargaining unit members in the procurement department provide services to PRESTO in connection with service contracts and infrastructure projects. Sales and loads of PRESTO cards are recorded into the Revenue Account Management system by bargaining unit members for accounting purposes, however this is only with respect to GO Transit and UP Express, as well as with respect to one TTC station that has contracted with Metrolinx for this service.

The Assignment of Positions within Metrolinx to the ATU Bargaining Unit

22Mr. M. Gallina, Manager of Employee Relations, described PRESTO as “a unique organizational division”. His testimony was that GO Transit once was a division of Metrolinx and was no longer such, but remained a distinct line of service. He defined division as based on a separate chain of command and a distinct column in the organizational chart and testified that the line of reporting within GO Transit was not as distinct as it had been, in that GO Transit employees no longer report to a GO Transit president. Mr. Gallina testified that there was no uniform definition of a division within the organization. As the Union emphasized, other witnesses described PRESTO differently. For example, Mr. G. Walker, former Assistant Manager of Human Resources and Chief of Bus Operations, described PRESTO as an “agency” or “line of business”, but not an “operating division”. Mr. M. Moodley, a PRESTO employee, suggested that Presto was a “shared service”. Mr. Ebraemi described PRESTO as an “operating division” as well as a “distinct line of business”.

23With respect to how it is determined whether positions fall within the ATU bargaining unit, Mr. Gallina testified that newly created positions are added to the unit when they are considered to fall within the GO Transit line of service or belong to one of the shared functions that came out of GO Transit. He made reference to the similarity to existing bargaining unit positions and “what made labour relations sense” as a basis for inclusion. He also referred to the inclusion of those employees “working side by side” with ATU employees. The Union suggested that this latter reference was an acknowledgement that the bargaining unit extended to those beyond the GO Transit line of business. I agree with the Employer that this conclusion cannot be drawn from his testimony. Mr. Gallina’s testimony was clear as to the principled basis for the Employer’s assessment of whether positions properly fell within the bargaining unit, which was their connection to GO Transit. Similarly, positions were assigned to Metrolinx and PRESTO, based on the nature of the duties, although there has indeed been some evolution and some instances of integration of duties. That latter point was demonstrated in the evidence in relation to the communications work. However, the evidence as a whole established a rationally based allocation of positions between GO Transit and within PRESTO, in accordance with the prescribed divisions and the overarching services provided by Metrolinx.

Argument and Analysis

24The Union relied on the following decisions in support of its position as to the interpretation of the scope of the bargaining unit: Re Canadian Appliance Manufacturing Company Ltd. and United Steelworkers of America, Locals 3129 and 7921, [1978] OLAA No. 124 (Shime); Ontario Public Service Employees Union v. Hotel Dieu Hospital et al, [2000] OLRD No. 867 (Cummings); Universal Workers Union, Labourers’ International Union of North America, Local 183 v. Fernbrook Homes Ltd. et al, [2006] OLRD No. 3277 (McKee); United Steelworkers of America and Crown Cork & Seal Canada Inc., [1994] OLAA No. 191 (MacDowell); Crown Cork & Seal Canada Inc. & United Steelworkers of America [1992] OLAA No. 395 (Burkett); and United Food and Commercial Workers, Local 1400 v. Westfair Foods Ltd., [2007] SLRBD No. 18 (Zborosky). The Employer relied on the following authorities in support of its position: CJA, Local 1256 v Ben Bruinsma & Sons Ltd., [1984] OLRB Rep 404 (Springate); Hall and Mathews Hall Teachers Assn. (Bargaining Unit Scope), 2017 CarsellOnt 18526 (Slotnick); UFCW, Local 280 v Gainers Inc., [1995] Alta LRBR 52 (Howes); CJA, Local 446 v Pitts Engineering Construction,[1983] OLRB Rep 938 (Burkett); CJA Local 446 v RioCan Holdings Inc., [2010] OLRD No. 1614 (Silverman); Halton (Regional Municipality) and IBEW, Local 636,1990 CarswellOnt 5480 (MacDowell); Teamsters Local 31 v. Kuehne & Nagel International Ltd., 1995 BCCAAA No. 91 (Sanderson) and Pomerleau Ontario Inc. v LIUNA, Ontario Provincial District Council, [2015] OLRD No 1299 (McKee).

25The analysis must begin with the language of the Collective Agreement. The language of Article 2.1, which defines the bargaining unit, refers to “all employees of the Employer”. The employer party is identified in the Collective Agreement as “GO Transit A Division of Metrolinx” on the cover page, in the signed memorandum confirming the terms of the agreement, and as “GO Transit (hereinafter referred to as the “Employer” or “The Corporation”) at p. 5 of the Collective Agreement. While, as the Union emphasized, Metrolinx is the legal entity that is the employer of all of those persons employed in its divisions, the language of the Collective Agreement must be given meaning. That language explicitly identifies its coverage as in relation to GO Transit on the cover page and at p. 5. Even if it were to be accepted that the reference to “GO Transit” on the cover page of the Collective Agreement was simply a clerical matter of no significance, the identification of the “Employer” as “GO Transit” at p. 5, on a document executed by a number of Union representatives, must be viewed differently. The word “Employer”, capitalized in Article 2.1, logically relates back to p. 5, where the “Employer”, also capitalized, is described as “GO Transit”, and it is noted that GO Transit is “hereinafter” referred to as “the Employer”. The provisions of a collective agreement must be interpreted together as a whole. I am unable to accept the Union’s argument that if the parties had intended to narrow the scope of the agreement to exclude any part of the legal employer they would have done so explicitly in Article 2.1. Again, leaving aside the language of the cover page, it is my view that the logical interpretation of the language of the Memorandum at p. 5 and the language of Article 2.1 read together is that bargaining rights are in relation to GO Transit. While there are two Letters of Agreement contained in the Collective Agreement that do refer to the Employer party as Metrolinx, this matter does not, in my view, undermine the significance of the defining and obvious interaction between the memorandum at p. 5 and the recognition clause of the Collective Agreement. The parties made their intentions clear in explicit language. This explicit recognition of GO Transit as the entity in which bargaining rights attach followed both the establishment of Metrolinx as the employer and, most significantly, the acquisition of PRESTO.

26I am unable to accept the Union’s argument that the analysis in Canadian Appliance Manufacturing Company Limited, supra, ought to compel a different conclusion. That case involved arguably conflicting provisions, with the arbitrator appropriately observing that a geographical reference to the employer did not undermine the explicit geographic bargaining scope referred to in the recognition clause. The language here is not analogous. There is no conflict here, as the directly relevant provisions read together as a whole compel an obvious conclusion. Similarly, while I agree with the need for a cautious interpretation of the recognition clause expressed in Hotel Dieu Hospital & OPSEU, supra, to accept the Union’s submission in this regard would be to ignore the logical and inescapable link between the reference to the Employer in the recognition clause and the explicit definition of the Employer in the Memorandum at p. 5 of the Collective Agreement that identifies GO Transit as the employer in relation to this bargaining unit.

27The Union argued that the OLRB decision of February 28, 2002, supports its position, in that it should be presumed that GO Transit had departments or divisions at the time of certification and in referring to “all employees of GO Transit”, the decision did not restrict the Union’s bargaining rights to particular divisions. It was suggested that this background should lead to the inference that when the parties negotiated Article 2.1, they did not conceptualize the restrictions to the Union’s bargaining rights to be based on any such divisions. It was significant, in the Union’s submission, that following certification, the parties did not add language that limited bargaining rights to particular corporate divisions. However, as the Employer points out, even if there were departments and divisions within GO Transit, what transpired here is that GO Transit as an entity became part of Metrolinx and its bargaining rights remained intact. I am unable to draw the inference that the Union urges here, given the history and the ongoing explicit recognition of GO Transit as the basis for the Union’s bargaining rights.

28The Union is, of course, clearly correct in its observation that accretions of bargaining rights are a common consequence of recognition clauses, a principle that is reflected in Re Canadian Appliance Manufacturing Company Ltd., supra, and both Re Crown Cork & Seal decisions, supra. However, as noted by the Employer in its submissions, the “elasticity” of the unit depends on the recognition language. As observed in the MacDowell Crown Cork and Seal decision at paragraph 60: “The question is not whether the parties can negotiate language which produces an accretion; but rather whether this collective agreement contains such language”.

29The Union correctly notes that a binding interpretation of the recognition clause is contained in Arbitrator Dissanayake’s April 23, 2020, decision, wherein it was concluded that positions could be brought into the bargaining unit if they involved duties and responsibilities “similar to duties of and responsibilities listed”. However, as previously noted, that decision was made in the context of a dispute about positions that had been established within GO Transit and does not address the issue of whether bargaining rights extend to employees outside of that division.

30The Union observed that the ability of an Employer to assign positions inside or outside of a division has the potential to allow bargaining rights to be evaded. In this regard the Union relied on Westfair Foods Ltd., supra. In that case, the Saskatchewan Labour Relations Board precluded an interpretation of the recognition clause that allowed an employer to make an assignment that was outside a bargaining unit by virtue of its designation as such by the employer, simply to avoid its inclusion in the unit, rather than by virtue of the nature of its functions. I agree with the Employer that there is no similar evidence in this instance. The Union’s submission was that the Pitts, supra, and RioCan, supra, decisions relied on by the Employer are distinguishable on the basis that they applied to the ICI sector, and the Board was understandably concerned about extending bargaining rights on a province wide basis, which is not the case in this instance. Even accepting that this is the case, the issue of what is prescribed by the Collective Agreement remains. Mr. Ardron is certainly correct in his observation that this Collective Agreement does not define the bargaining unit in terms of a division, per se, and in that regard is distinguishable from the Halton, supra, and the Kuehne & Nagel, supra, decisions relied on by the Employer. However, the issue of the appropriate interpretation to be given to the language of the Collective Agreement remains the central issue and the comment at paragraph 14 of the Halton decision, that certain employees in a new division did not fall within the bargaining unit was “a consequence of the restrictive language that the parties have adopted” is applicable here.

31To be clear, the Union does not claim that the PRESTO division was established to avoid bargaining rights. Rather, it is the Union’s position, as set out in paragraph 36 of its reply submissions: “that Metrolinx has used its power to reorganize to erode the bargaining unit over time”. The Union referred to Ottawa Citizen and Ottawa Newspaper Guild, Loc. 205, [1989] OLAA No. 33 (Bendel), wherein it was concluded that bargaining rights cannot be defeated by the transfer of bargaining unit functions to a different division. While there was a separation of the issues of 1) whether the Collective Agreement could apply to those within PRESTO, 2) if so, whether the positions were similar or analogous, the Union’s submissions based on the Ottawa Citizen decision were similar to the argument advanced in the Union’s initial submissions in relation to the second issue, where it relied on Scarborough and C.U.P.E, Local 368,[1975] OLAA (Adams); Sanofi Pasteur Ltd. and UNIFOR, Local 1701, [2014] OLAA No. 320 (Goodfellow); Inn Vest Hotels GP XV Ltd., [2019] 300 L.A.C. (4th) 391 (Asbell); Monarch Fine Foods and Teamsters Local 647,1990 CarswellOnt 5792 (Brown); Sunnybrook Health Sciences Centre and SEIU Local 777, [1997] OLAA No. 103 (Goodfellow). In essence, those decisions set out the circumstances in which the integrity of the bargaining unit will be protected, when work is assigned or contracted outside of the unit.

32It is my conclusion that the evidence does not establish that the integrity of the bargaining unit of employees covered by the Collective Agreement has been compromised. PRESTO exists as a legitimate identifiable division. The fact that the divisions within Metrolinx were characterized in different language by different witnesses does not give me pause in concluding that PRESTO exists as an identifiable entity, as does GO Transit. PRESTO’s existence as an operating entity when it was assumed by Metrolinx and the subsequent Collective Agreement language referring to GO Transit as the Employer presented a significant challenge for the position advanced by the Union, as Mr. Charney emphasized. Certainly, it is the case that Metrolinx provides shared services to both GO Transit and PRESTO and they are both part of the Metrolinx organization. However, it is my view that the evidence did not establish functional integration to the extent that the Collective Agreement can be interpreted to include persons outside of the GO Transit line of business. The language of the Collective Agreement clearly restricts bargaining rights to those within GO Transit and that language must be given meaning and effect.

33Given the foregoing conclusions, there is no basis to consider the second argument advanced by the Union, to the effect that the disputed positions within PRESTO, or in the case of the Customer Communications Specialist, within Metrolinx, are similar to or analogous to bargaining unit positions. It is my view that this argument is only open to the Union in relation to positions that exist within GO Transit.

34For the foregoing reasons, the grievance is dismissed.