GSB# 2021-0016

Union# G-029-21-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)

Employer

BEFORE

Matthew R. Wilson

Chair

FOR THE UNION

Dean Ardron and Simone Tremner-Caron Ursel Phillips Fellows Hopkinson LLP Counsel

FOR THE EMPLOYER

Daniel Fogel and Jamie Burns Hicks Morley Hamilton Stewart Storie LLP Counsel

HEARING

June 30, September 22, October 16 and November 10, 2023.

Decision

PRELIMINARY MOTION

[1]. The grievance before me, filed by the ATU on March 11, 2021, challenges Metrolinx’s decision to contract out work at the Willowbrook Rail Maintenance Facility and Yard and Rail Layovers & Outposts (“Willowbrook Yard”).

[2]. This decision deals with three preliminary arguments made by Metrolinx. Specifically, Metrolinx argues that the ATU’s particulars are beyond the scope of the grievance, that some of the allegations are premature, and one allegation related to layoffs and terminations cannot be pursued as a policy grievance by operation of Article 4.5 of the collective agreement.

[3]. For the reasons set out in this decision, I have decided to grant Metrolinx’s motion with respect to the issue of layoffs and terminations as those allegations are precluded by Article 4.5 of the collective agreement. The other preliminary arguments raised by Metrolinx are dismissed.

BACKGROUND

[4]. The contracting out of work at the Willowbrook Yard is part of a larger Go Rail Expansion program. As it is part of a multi-phased project, the timelines and the impact on the bargaining unit have changed since it was originally communicated to the ATU in February, 2021.

[5]. The parties filed an agreed Terms of Reference For Litigation, which describes the status of the contracting out. Metrolinx advised the ATU that a two-year “Development Phase” would commence after March 31, 2022. During the “Development Phase”, Metrolinx and the contractor are to complete preliminary steps before the contractor engages in the operations and maintenance activities that are the subject of the grievance. One of these preliminary steps is to allocate and confirm the assets that are to be maintained by the contractor. At the end of the Development Phase, Metrolinx can opt out of the project agreement.

[6]. The grievance, which is filed as a Policy Grievance at Step 2, on March 11, 2021, reads as follows:

Article(s) in dispute: Articles 1, 2, 3, 6, 7, 27, Letter of Agreement #3 and any other articles, or employment related statutes that may apply

Grievance Statement:

The Union hereby grieves that contrary to Letter of Agreement #3 the Employer improperly contracted out bargaining unit work in the Willowbrook Rail Maintenance Facility and Yard and Rail Layovers & Outposts (“Willowbrook”) as it is contracting out work that is “usually and presently performed by members of the Union” and that the Employer’s “contracted activities” are not for “temporary or short-term specialized work”.

The Union seeks the following relief:

A Declaration of the contravention of the Collective Agreement;

An Order that the Employer cease and desist form continuing to violate the Collective Agreement as herein set forth;

A Direction that the Employer comply with all provisions of the Collective Agreement;

An Order that any affected employees be made whole;

An Order that the Union be made whole; and

Such further and other relief as the Union should advise and an arbitrator may grant.

This grievance is without prejudice to the Local’s right to file a further grievance(s) in the event that the employer should subsequently commit any further breach of the Collective agreement such as:

Improperly contracted out bargaining unit (sic) in Willowbrook as it is obligated to give preference to its own employees performing the contracted out work when cost-effective resources are readily available in-house

Failing to share with the Union details relevant to the proposed contracting out regard why it is necessary to contract out such work and the business efficiency reasons for the necessity to contract out such Work

Lay-offs or terminations result from the Employer’s contracting out contrary to Article 27 of the Collective Agreement.

Please schedule a meeting within the time limits of the Collective Agreement to resolve this grievance.

[7]. A grievance meeting was held on March 23, 2021. Pam Hooke, Employee and Labour Relations Manager, testified about the discussions in the grievance meeting. Ms. Hooke testified in a straightforward and credible manner and her evidence was not seriously challenged.

[8]. Ms. Hooke testified that the ATU had not specifically alleged that employees were improperly laid off or that their employment was terminated. She had asked Rob Cormier, the Local President, to assure ATU members that their employment would not be terminated. According to Ms. Hooke’s evidence, Mr. Cormier agreed that the messaging to the members would be that there would be no layoffs or terminations. Ms. Hooke also testified that the ATU had never raised the issue of contracting in bargaining unit work, nor had the timing of the contracting out announcement been challenged. Ms. Hooke explained that since the ATU had raised other issues in the addendum language on the grievance form, she felt it necessary to address those issues. Thus, she reminded Mr. Cormier that the ATU had an open invitation to request relevant details and that a data bank of information was available for the ATU to review.

[9]. Ms. Hooke confirmed in her evidence that there were discussions about costings and the information provided to the ATU to date. However, it was never specifically alleged that Metrolinx provided the information in an untimely manner.

[10]. In cross-examination, Ms. Hooke stated that the number of impacted positions had been reduced to 36 with 32 employees being directly impacted. She stated that the transition of work to the third-party contract was anticipated to occur on January 1, 2025.

[11]. A formal grievance response was issued by Metrolinx on April 5, 2021. In that letter, Metrolinx denied that the decision to contract out the work violated the collective agreement. It made specific and detailed reference to LOU #3. It also stated the following in respect of terminations and layoffs:

In particular, Article 27 clearly contemplates that the contracting out of bargaining unit work can happen, in situations such as Metrolinx is proposing, where no layoffs or terminations have occurred as a direct result of the contracting out.

[12]. The grievance was referred to the Grievance Settlement Board and a series of hearing dates were held. Prior to the first hearing date, the ATU sought production of certain documents and provided some particulars of its grievance. It wrote,

This matter relates to the Employer’s decision to improperly contract out bargaining unit work In the Willowbrook Rail Maintenance Facility and Yard and Rail Layovers & Outposts (“Willowbrook”). The contracting out includes work which is "usually and presently performed by members of the Union". Furthermore, the Employer's “contracted activities” are not for "temporary or short-term specialized work”. This conduct by the Employer is in breach of the Collective Agreement, including, but not limited to, Articles 1, 2, 3, 6, 7, 27, Letter of Agreement #3 and any other articles which may apply.

[13]. Metrolinx wrote to the ATU on February 15, 2022 advising that it would be arguing that the grievance was premature since the contracting out had not yet occurred. It then proposed to adjourn the hearing dates until the Summer of 2023 rather than seeking to have the grievance dismissed.

[14]. The parties entered Terms of Reference For Litigation, which generally stipulated certain facts (described above) and set out the parties’ agreement to adjourn the hearing dates until the Summer of 2023. The next hearing date was scheduled for June 30, 2023.

[15]. The ATU wrote to Metrolinx on June 26, 2023 to “provide provisional Without Prejudice particulars”. It advised Metrolinx that it was providing the particulars despite not being told which positions were being contracted out nor had it received the requested production. Metrolinx objected to this characterization at the hearing.

[16]. In the June letter, the ATU stated that it understood from an April 24, 2023 Labour Management Meeting that On Express was the winning proponent and that 45 positions at the Willowbrook Yard would be impacted. It also stated that it had been advised by Metrolinx that impacted bargaining unit members would be transferred to other positions within Metrolinx or to positions with the contractor. As part of the “Factual Background”, the ATU characterized its grievance as relating to Metrolinx’s decision to “improperly contract out and/or contract in bargaining unit work”. It stated that the “contracting out/in includes work which is "usually and presently performed by members of the Union". Furthermore, the Employer's “contracted activities” are not for "temporary or short-term specialized work”. The ATU also stated that Metrolinx “…did not give preference to its own employees and failed to provide all relevant information with the Union at the appropriate times.”

[17]. A Case Management Hearing was held on June 30, 2023. The parties agreed to a schedule for production and particulars. On July 7, 2023, the ATU provided particulars of its grievance to Metrolinx. Metrolinx then wrote to the ATU on July 17, 2023 agreeing to produce certain documents to the ATU provided it signed confidentiality agreement. Metrolinx also requested production of documents from the ATU.

THE PRELIMINARY MOTIONS

[18]. Metrolinx has three distinct preliminary arguments that the parties addressed in the hearing.

[19]. Metrolinx argues that the ATU has improperly expanded the scope of the grievance since it was filed in March 2021. Specifically, it objects to four issues that the ATU intends to raise as part of its grievance:

• That the transfer of work may be a “contracting in” arrangement that violates the collective agreement;

• That Metrolinx had intended to contract out or contract in the work at a time when it committed to the ATU that it would not do so;

• That Metrolinx had failed to share information with the ATU in a timely manner; and

• That employees were improperly laid off or had their employment terminated.

[20]. Metrolinx points to the language of the grievance, the content of the grievance meeting as described by Ms. Hooke, and the parties’ correspondence to argue that the ATU has improperly expanded the grievance.

[21]. Additionally, Metrolinx argues that even if the scope of the grievance covered the issues raised by the ATU, those issues ought to be dismissed on the basis of prematurity. It argues that the case would be impossible to litigate as the transfer of work has not yet occurred. Thus, the additional issues ought to be dismissed.

[22]. With respect to the issues of layoffs and terminations of employment, Metrolinx argues that Article 4.5 of the collective agreement precludes the ATU from filing a policy grievance directly affecting an employee which such employee could himself file a grievance. Thus, the issue of layoffs and terminations of employment arising from the contracting out could only be challenged through an individual grievance and not a policy grievance.

[23]. Finally, Metrolinx also raises an estoppel issue. The parties agreed on the last day of hearing to postpone final arguments on this issue.

[24]. The ATU argues that a liberal interpretation of the language used in the grievance form supports the issues it raised in the June and July 2023 correspondence. It argues that it raised the issues as it became aware of new information disclosed by Metrolinx. At its most basic description, the ATU challenges the transfer of bargaining unit work to a third-party contractor. This issue is apparent from the Articles cited in the grievance and the general description it put forward.

[25]. In response to Metrolinx’s argument that the issues could not be litigated based on prematurity, the ATU argues that the contracting out of work has been announced by Metrolinx and the issues have crystallized. There are sufficient facts, it argues, through the correspondence, contracts and agreements, as well as the announcements of Metrolinx’s plans, to support an allegation that the collective agreement has been breached.

[26]. The ATU further argues that the issue of layoffs and terminations of employment are not based in individual circumstances of employees. Rather, it characterizes the issue as whether it is a breach of Article 27 to “force individuals to make an election” between continuing their employment at Metrolinx but in a different capacity or opting to work for the third-party contractor. Thus, the issue as generally described could proceed as a policy grievance under Article 4.5.

DECISION

[27]. The preliminary issues raised by Metrolinx were presented as distinct arguments. Thus, I will deal with each argument separately. In reaching my decision, I have reviewed the material put before me and the numerous awards cited by the parties.

Article 4.5 Policy Grievance

[28]. For the purpose of this analysis, I assume, without making the finding, that the allegations pertaining to the layoffs and termination of employment, as alleged by the ATU, fall within the scope of the grievance. Metrolinx argues that Article 4.5 of the collective agreement precludes the ATU from pursuing a policy grievance on a matter that could be covered by an individual grievance. This provision reads as follows:

4.5(1) Where any difference arises between the Employer and the Union relating to the interpretation, application, administration or alleged violation of the agreement, the Union shall be entitled to file a grievance with Human Resources Employee Relations, provided it does so within and not after fourteen (14) calendar days from the occurrence or origination of the circumstances giving rise to the grievance. However, it is expressly understood that the provisions of this paragraph may not be used by the Union to institute a complaint or grievance directly affecting an employee which such employee could himself institute and the regular Grievance Procedure shall not be thereby by-passed.

[29]. Metrolinx’s position is that any issue related to the termination and layoffs of employees could be grieved by the employee as an individual grievance. As the Policy grievance covers the same subject on which an employee could institute an individual grievance, the allegations about terminations and lay-offs are precluded by Article 4.5. Metrolinx advises that it will not raise a timeliness issue should individual grievances be filed in a timely manner from the date of my award or from when the facts transpired.

[30]. The ATU argues that the issue could be framed as whether it was a violation of the collective agreement “… to force individuals to make the election” between moving within Metrolinx or to the third-party contractor. It argues that this is an interpretation issue about whether “…an individual could be required to elect to move to the contractor or move within Metrolinx”. It takes the position that since employees have not yet been dismissed or laid off, an individual grievance could not yet be filed. Thus, such a grievance is not precluded by Article 4.5.

[31]. There is some inconsistency in the ATU’s position. On the one hand, it argues that there are sufficient facts to fully litigate the issues related to contracting out, including the impact on the employees. On the other hand, it argues that the facts with respect to individual employees have not yet crystallized and thus individual grievances could not be filed.

[32]. Another difficulty with the ATU’s position is that the description of the allegation that it seeks to make as part of the policy grievance has been stated differently on at least four occasions. While I understand the ATU is dissatisfied with the information that has been shared by Metrolinx, my task at this early stage is to determine whether its allegation (or complaint) is precluded by Article 4.5 of the collective agreement. I will first describe the four different ways the ATU has described this allegation.

[33]. First, the uncontradicted evidence of the grievance meeting is that the discussions were generally about whether employees would lose their employment either through terminations or lay-offs as this was a concern raised by Rob Cormier., ATU Local President. At the time of the grievance meeting, the parties were aware that bargaining unit positions would be eliminated and that the employees’ jobs would be affected. There is no evidence that the allegations by the ATU were focused on an interpretative issue about whether employees could be forced to make an election between moving within Metrolinx or the third-party contractor. Rather, Mr. Cormier was genuinely concerned about the employees’ jobs and raised that issue with Ms. Hooke in the grievance meeting.

[34]. The second description is found in the ATU’s June 26, 2023 letter, where it characterized the issue as follows:

The Employer has advised that impacted bargaining unit members will be

transferred to other positions within Metrolinx and/or to positions with the 3rd party contractor. This constitutes a lay-off and/or termination of employment pursuant to the Collective Agreement.

[35]. The point made by the ATU is about the impact of the transfer to other positions within Metrolinx or to the third-party contractor. This letter identifies that it is “Without Prejudice”. I was given no explanation about what was meant by this, nor was I told what was meant by the opening statement of the letter that identifies it as “provisional Without Prejudice particulars”. Regardless of these references to “without prejudice”, the issue about what the ATU seeks to pursue as part of the grievance is squarely before me as a jurisdictional issue. Thus, I must consider its articulation of the issue.

[36]. The allegation was refined for a third time in a July 7, 2023 email where the ATU described the allegation as follows:

Article 27

Pursuant to Article 27, the involuntary transfer of bargaining unit members to other locations constitutes a lay‐off. Furthermore, if bargaining unit members cease their employment with Metrolinx and commence employment with the third party contractor, this constitutes the termination of their employment.

[37]. This allegation is that a forced transfer to other locations is a layoff or that if employees cease working for Metrolinx and start working for the contractor that it is a termination of employment. The email uses the phrase “Without Prejudice”, but again it is an issue that I have been asked to consider as part of the jurisdictional issue.

[38]. The fourth iteration of the allegation was made during the hearing where counsel described the issue as “an interpretation issue” to determine whether “It is a breach [of Article 27] to force individuals to make the election”. The issue as described by ATU counsel is whether “…an individual can be required to elect to move to the contractor or move within Metrolinx”.

[39]. I have highlighted these iterations of the allegation because I must determine whether the Policy Grievance is being used by the ATU to “institute a complaint or grievance directly affecting an employee which such employee could himself institute”. The allegation, as may be summarized from the various iterations, is that the employees have either been laid off or their employment terminated because of the contracting out of work and that Metrolinx is precluded from compelling the individually affected employees to make an election.

[40]. In considering this issue, I have carefully reviewed the award of Arbitrator Randall in Fishercast Global Corp. v. I.U.P.D., 2008 CarswellOnt 8475. That case dealt with a grievance challenging the contracting out of bargaining unit work. The collective agreement contained similar language that precluded the Union from filing a policy grievance. It read, in part, as follows:

However, it is expressly understood that the provisions of this Article may not be used by the Union to institute a Grievance or complaint directly affecting an employee which he/she could have instituted himself/herself and the regular Grievance Procedure shall not be thereby by-passed.

[41]. In dismissing the grievance, Arbitrator Randall reasoned as follows:

The only test, on this language, is a fact-finding one. Were there identifiable employees, directly affected by the employer’s action, who could have filed a grievance, at the time the policy grievance was filed? The answer to that, on the facts before me and despite Ms. Eliot’s best efforts to convince me otherwise, is an unequivocal ‘yes’. The Employer action which leads to the policy grievance is a series of individual lay-offs. Each employee, who received a lay-off notice, 17 in all, was directly affected by the Employer’s action, and could have challenged same on the basis that there was subsisting bargaining unit work, contracted out, which they could perform.

[42]. The reasoning was later followed by Arbitrator Davie in Fishercast Global Corp. v. I.U.P.D. (unreported) June 2, 2008 (Davie).

[43]. In the circumstances before me, there are identifiable employees who are directly affected by the contracting out of work. I have been advised that those employees have been made offers by Metrolinx to either elect to remain at Metrolinx or move to the third-party contractor. Those are individual employees directly affected by the employer’s actions. The ATU’s allegations about layoffs and terminations of employment are complaints or grievances about directly affected employees (who have been told to make an election) “…which such employee could himself institute”.

[44]. Even taking the ATU’s most recent description of the allegation – characterized as an interpretative issue about whether Metrolinx can compel the employees to make an election – it is about specific employees who have been issued individual letters with respect to making an election. Those employees are directly affected and can file a grievance.

[45]. Thus, the ATU is precluded by Article 4.5 of the collective agreement from pursuing these allegations as part of this Policy Grievance.

[46]. I will now turn to Metrolinx’s preliminary argument about the scope of the grievance. Given my conclusion regarding the allegations about layoffs and terminations of employment, it is not necessary for me to consider whether those allegations fall within the scope of the grievance.

Scope of the Grievance

[47]. There is very little dispute about the legal principles that must be applied to determine whether I have jurisdiction to arbitrate the issues raised by the ATU. Arbitrators have generally held that grievances are to be liberally construed and that a technicality should not impede the adjudication of the real issue between the parties. Arbitrators have avoided reading grievances through a legalistic lens as the grievance procedure is not meant to be a judicial proceeding.

[48]. It has also been held that the grievance process must be used to address actual and substantive workplace disputes, which necessitates some precision in describing the dispute. The parties need to understand the nature of the dispute and the remedy sought to facilitate a fair and efficient process. Arbitrators have not permitted a party to substitute or add on to disputes that are different from the original grievance that was filed. As described by Arbitrator Lynk in Ontario (Ministry of Transportation) and OPSEU (Labanowicz), 2014 CarswellOnt 12578 (Lynk),

The grievance process is not so elastic so as to permit the joining of issues that are truly unconnected - measured by its connectedness in fact, in substance and in time - with the reasonably understood meaning and coverage of the drafted grievance language.

[49]. This same point was made in by Arbitrator Burkett in Fanshawe College v. O.P.S.E.U. (2002), 2002 CanLII 79073 (ON LA), 113 L.A.C. (4th) 328 (Ont. Arb.), at 336:

The Union is not permitted at a later date, just prior to arbitration, to completely changes horses in midstream and raise issues not contemplated by the grievance which are not consistent with the language of the grievance, which cannot be reasonably be included in the grievance and with the language of the collective agreement and which are entirely separate and distinct from the subject of the original grievance.

[50]. In Liquid Carbonic Inc. v. U.S.W.A. (1992), 1992 CanLII 14618 (ON LA), 25 L.A.C. (4th) 144 (Ont. Arb.) (Stanley), the arbitrator wrote at p. 147:

The whole process of grievance arbitration, and grievance procedure, is designed to permit the parties at the earlier stages to resolve the dispute between themselves. Hence, collective agreements invariably contain grievance procedure provisions so that grievances are funneled to an arbitration board only after the parties have had a chance to resolve the matter. It is our view that the comments of Professor Laskin and the decision in the Re Blouin Drywall case attempt to accommodate both values. If the issue raised at the arbitration hearing is in fact part of the original grievance, a board of arbitration should not deny itself jurisdiction based on a technical objection as to the scope of the original grievance. To do so would deny the value of flexibility and would be to compel the parties to draft their grievances with a nicety of pleadings. On the other hand, if the issue raised by one of the parties is not inherent in the original grievance, for the board to permit the party to raise that issue as part of the original grievance would be to deny the parties the benefit of the grievance procedure in an attempt to resolve the issue between themselves. In fact, it would be to permit one party to substitute a new grievance for the original grievance.

[51]. In balancing these principles, arbitrators have asked whether the issues raised are an inherent part of the grievance. This is an objective inquiry. Again, in Fanshawe College, Arbitrator Burkett described the analysis as follows,

10. The aggrieved party is entitled to rely on the grievance as filed, albeit read in its broadest terms, and to govern itself accordingly with respect to settlement discussion, referral to arbitration and preparation for arbitration.

11. The acid test is whether an issue not encompassed within the grievance that requires the calling of evidence and the making of legal submissions has been raised. Without restricting the authority of an arbitrator to fashion an appropriate remedy at the conclusion of a case, which may or may not differ from the remedy sought, it is the statement of grievance read in conjunction with the remedy sought that defines the essential nature of the grievance and the issues that have been raised by the grievance, thereby allowing an arbitrator to decide if a grievance has been improperly expanded.

[52]. I will now turn to consider whether the issues raised by the ATU that are objected to by Metrolinx are an inherent part of the grievance or whether they truly are different.

[53]. The grievance was filed in March 2021 following Metrolinx’s announcement to contract out work at the Willowbrook Yard. In determining the scope of the grievance, I start with the language used in the grievance. The grievance identifies six articles of the collective agreement, a letter of agreement and the customary “…any other articles or employment related statutes that may apply”. Those articles are titled Purpose, Recognition, Check Off Dues, Management’s Rights, Seniority, and Employment Stability.

[54]. The Letter of Agreement #3, titled “Contracting Out” commits Metrolinx to certain obligations that include, among other things, notifying the ATU before finalizing its decision to contract out work. The Letter of Agreement #3 contains a process to exchange information and proposals.

[55]. The Grievance Statement alleges that “…the Employer improperly contracted out bargaining unit work in the Willowbrook Rail Maintenance Facility and Yard and Rail Layovers & Outposts”. It continues to trace the language of Letter of Agreement #3. The ATU argues that this statement is broad enough to put Metrolinx on notice that it is alleging improper “contracting in” as well as contracting out. This is a compelling argument. However, as will be described later, there are other persuasive arguments to reach the same conclusion.

[56]. Notably, the grievance also contains a statement that the ATU reserved its right to file further grievances for specific allegations (set out above). This is a peculiar statement for a grievance form that I have not seen in my experience. Ms. Hooke testified that it was not a usual statement on grievances filed by the ATU. In my view, it does not add clarity to the grievance. However, I do not read the language to detract from the thrust of the grievance which clearly identifies the Articles that are alleged to have been violated and a statement of the alleged violation. The ATU’s statement that it might file future grievances does not, in my view, limit or restrict the language used to describe the grievance itself, that being a challenge to Metrolinx’s decision to contract out the work.

[57]. Unions are not required to articulate the full particulars of the grievance in the Grievance Form. Rather, as described by the Court of Appeal in Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 1975 CanLII 707 (ON CA), 8 O.R. (2d) 103 (Ont. C.A.), the dispute must be clearly stated and liberally construed so that the real complaint is dealt with. The Court stated,

No doubt it is the practice that grievances be submitted in writing and that the dispute be clearly stated, but these cases should not be won or lost on the technicality of form, rather than on the merits as provided in the contract and so the dispute may be finally and fairly resolved with simplicity and dispatch. ... Certainly, the board is bound by the grievance before it but the grievance should be liberally construed so that the real complaint is dealt with and the appropriate remedy provided to give effect to the agreement provisions ...

[58]. What is the real complaint in the grievance before me? The ATU challenges Metrolinx’s decision to transfer the work out of the bargaining unit. This is apparent from reading the language used in the grievance. The particulars from the ATU in the June and July correspondence that spawned Metrolinx’s preliminary motion are clearly related and arise out of the central allegation being made by the ATU. An allegation of improper “contracting in” may be a different legal characterization of contracting out, but it is clearly part of the same complaint about the transfer of bargaining unit work.

[59]. While the ATU may not have expressly pled that the arrangement is “contracting in” or that the contractor is the true employer, its central allegation about improper transfer of work out of the bargaining unit is broad enough to incorporate such an issue. A similar issue arose in Imperial Oil, Products and Chemicals Division Nanticoke Refinery v. Unifor Local 900 (Manpower Grievance) (2013), 238 L.A.C. (4th) 408 (Goodfellow). In that case, Arbitrator Goodfellow held that the union was not required to articulate every legal argument available to it. He reasoned:

11 In so stating, I do not mean to suggest that the Employer should have, or even could have, known from the face of the grievance that the complaint would ultimately take the shape of contracting in, rather than contracting out or "manpower utilization" (whatever that may be). But that is not the point. The point is that it is not beyond the scope of the tersely worded grievance nor does it represent a change of grounds. And, while a review of the parties' notes of the Step 2 meeting, where the grievance was first canvassed, reveals that the focus of the discussions was on staffing levels, etc. (to what precise contractual end, I remain unclear), there is absolutely no doubt that the Union raised the very issue that it is now seeking to pursue. To require the Union to do more than that would, in my view, be unduly technical and contrary to the interests of sound labour relations. It is the kind of detail or precision that is not demanded by Article 6.01 and, in my opinion, would only serve to frustrate, rather than advance, the dispute resolution process.

[60]. I agree with Arbitrator Goodfellow’s reasoning and adopt it in the case before me. The ATU went far enough in its grievance to put Metrolinx on notice that it was challenging the transfer of work. To require the ATU to articulate its legal argument about whether it is a “contracting in” situation is beyond what the arbitral jurisprudence has required of aggrieved parties.

[61]. Similarly, the timing of Metrolinx’s decision and the sharing of information are about the same general complaint and clearly fall within the scope of the language (including the cited Articles and Letter of Understanding #3) of the grievance. This is not “changing horses” or trying to string together unconnected complaints, adopting the phrases used in the jurisprudence. Rather, this is part of the inherent grievance.

[62]. These issues all fit squarely within the remedies being sought by the ATU as identified in the grievance (listed above). The ATU is not seeking a new remedy nor is it seeking to amend its listed remedies.

[63]. I have also considered the contents of the grievance meetings as described by Ms. Hooke. In my view, those discussions were broad enough to encompass the issues that the ATU seeks to pursue at arbitration. Metrolinx has emphasized that the issue of “contracting in” fundamentally changes the legal issue, the evidence needed to be called and the applicable remedies. In my view, Metrolinx has overstated this argument. It would be immaterial if the ATU said in the grievance meeting “we think the third-party contractor is the real employer” as opposed to challenging the transfer of work to a third-party contractor. Metrolinx was always aware of the real issue in dispute: the loss of bargaining unit work. Whether the transfer of work is ultimately found to be “contracting out” or “contracting in” it is unlikely to impact the final disposition of the grievance as the real issue has not changed. To be clear, this is not a True Employer case that is often litigated at the Ontario Labour Relations Board to determine bargaining rights in a certification application. The case is generally about whether the transfer of work is permissible under the collective agreement.

[64]. Ms. Hooke also confirmed that the parties discussed the list of items that the ATU said that it might file a grievance in the future, on a without prejudice basis. In fairness, Ms. Hooke was doing what a good labour relations expert would do in the circumstances. She was, as she testified, trying to avoid grievances and conflicts by addressing anticipated issues with the union. That makes good sense in the circumstances. I am simply unable to accept that Metrolinx was unaware that the ATU may pursue these challenges – all of which arise out of the contracting out of bargaining unit work – at arbitration.

[65]. In reaching this conclusion, I have also examined the correspondence from the ATU when the grievance was filed (the March 10, 2021 letter) as well as the grievance response from Metrolinx (dated April 5, 2021). The parties referred to the timing of the announcement, the quality of information provided by Metrolinx to ATU, and their respective interpretations of the collective agreement about contracting out of work. These are all part of the broader issues being pursued by the ATU, none of which should be a surprise to Metrolinx.

[66]. Thus, I conclude that the scope of the grievance properly includes the issues raised by the ATU at arbitration. Generally, that can be described as alleging that the transfer of work is contracting in, the timing of Metrolinx’s decision, and the sharing of information.

Prematurity

[67]. Metrolinx argued that if the specific allegations fell within the scope of the grievance that I should dismiss them on the basis of prematurity. Those allegations are as follows:

• that the transfer of work is “contracting in”

• that employees have been improperly terminated or laid off

[68]. The issue about termination of employment or layoffs is addressed earlier in this decision. I determined the ATU is precluded from pursuing these allegations pursuant to Article 4.5 of the collective agreement. Thus, I am left to determine whether the ATU’s position about “contracting in” is premature.

[69]. Metrolinx argues that since the transfer of work has not yet occurred, it is not possible for the litigation to proceed. In other words, the facts have not yet transpired and thus the issues have not crystallized.

[70]. The issue between these parties is the transfer of work and the impact on the positions. The process of transferring the work out of the bargaining unit is particularly complex in this case and is anticipated by Metrolinx to be a long process. However, the process has commenced. The contractor has been secured. The work has, for the most part, been identified. The employees have been given notice and options. While the contractor may not have taken over the work yet, there is some understanding of what that will look like as it continues to evolve. There have already been several hearing dates, exchanges of production, a confidentiality agreement to protect commercially sensitive information, and Terms of Reference for Litigation. In my view, the parties have come too far in the litigation process to now say that a distinct legal argument is premature. These parties have commenced the arbitration process on the issue of contracting out work at the Willowbrook Yard. In my view, there is enough known about Metrolinx’s plans and the actions that have occurred thus far to litigate the issue. It is time for that litigation to get underway.

[71]. The cases cited by Metrolinx about prematurity are distinguishable both on their facts and the issues presented in those cases.

[72]. In Tempo Building Supplies (McPhillips), the grievor, who was off work and in receipt of Workers’ Compensation benefits, understood that his employment had been terminated following an announcement to contract out work that he normally performed. The grievance specifically alleged that the contracting out had “cause[d] me to lose my job”. At the arbitration hearing, the employer confirmed that the grievor’s employment had not been terminated. Moreover, the union did not challenge the employer’s decision to contract out the work. On that basis, the arbitration panel concluded that the grievance was premature. It reasoned as follows:

However, once the situation was clarified at the hearing by the Employer's statement that there had been no termination, the grievance then became premature. This is not a Union policy grievance based on the intention to contract out as set out in the Employer's latter of January 27. In fact, the Union expressly stated to this board that there was no exception being taken to the contracting out at this point in time. This is an individual grievance dealing with the rights of Mr. Sahota. Those rights will only be open to test at the time at which Mr. Sahota indicates whether he is able to return to work.

[73]. Similarly, the issue in Beachvilime Ltd. v. E.C.W.U., Local 3264, 1989 CarswellOnt 3877 (Hinnegan) was whether the grievor was at risk of layoff in the future because he refused to obtain the necessary welding requirements. The employer, in a memorandum to employees, stated that such employees may be laid off in favour of “…persons prepared to qualify or qualified at that time.” As the grievor had not been told he would be laid off, the arbitrator held that “…simply anticipating that possibility, is premature”.

[74]. The facts in Beachvilime Ltd. are quite different than the circumstances before me. Here, Metrolinx has announced that bargaining unit work will be contracted out and that this will impact the employees and their jobs. The number has fluctuated, but at the time of Metrolinx’s preliminary motion, there were 32 individuals impacted and a total of 36 positions to be lost. I was also advised that the process of offering these employees the option of moving to the third-party contractor or remaining at Metrolinx had commenced. Thus, there is a very real and timely issue to be litigated.

[75]. The legal issue in Electrical Contractors Association v I.B.E.W., [1990] O.L.R.B. Rep. 283 is particularly unique and shares no similarity to the issues before me. Briefly, the employers referred its grievance to the Ontario Labour Relations Board (“OLRB”) to seek an advanced ruling on the calculation (or off-set) of the deductions under the not-yet enacted Employer Health Tax Act, 1989. It was essentially a request from the employers for an advisory opinion from the OLRB before the legislation had been enacted and before any deductions had been made. Thus, the OLRB ruled that there was no difference to litigate and the grievance was premature. This is very different from the circumstances before me.

[76]. These cases are distinguishable and of limited value to my analysis.

[77]. For these reasons, Metrolinx’s argument that the “contracting in” issue should be dismissed as premature is denied.

SUMMARY

[78]. For the foregoing reasons, I have determined that Article 4.5 precludes the ATU from pursuing the allegations with respect to lay-offs and terminations of employment as a Policy Grievance. Those allegations can be pursued as individual grievances under the collective agreement. The allegations with respect to contracting in, the timing of the announcement, and the information provided to the ATU fall within the scope of the grievance and may be pursued. Metrolinx’s prematurity argument is dismissed.

[79]. The preliminary motion is upheld, in part.

[80]. This matter is scheduled to continue on December 12, 2023.

Dated at Toronto, Ontario this 30th day of November 2023.