GSB# 2021-3055

Union# G-132-21-TS

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

Randi H. Abramsky

Arbitrator

FOR THE UNION

Dean Ardron Ursel Phillips Fellows Hopkinson LLP Counsel

FOR THE EMPLOYER

Daniel Fogel Hicks Morley Hamilton Stewart Storie LLP Counsel

HEARING SUBMISSIONS

November 14, 2023 November 29 and December 18, 2023

Decision

1The Employer has moved to bifurcate the hearing in this matter to address its objection to the Grievance Settlement Board’s (the “Board’s”) jurisdiction to hear this dispute. In the course of exchanging documents and particulars, the Employer learned that two earlier grievances had been filed by the Union and withdrawn or abandoned. The Employer asserts that these actions deprive the Board of jurisdiction to hear the instant grievance, and that issue should be addressed as a preliminary matter. The Union opposes the Employer’s request to bifurcate the hearing.

Facts

2The instant grievance, G-132-21-TS, was filed on December 10, 2021, and asserts as follows:

The Union hereby grieves the Employer’s violation of the Collective Agreement whereby it has failed to post and recognize the position of “Investigator” as a bargaining unit position in accordance with the Collective Agreement. The Union further hereby grieves the Employer’s violation of the Collective Agreement whereby non-bargaining unit personnel are to perform bargaining unit work. The work of the “Investigator” position is bargaining unit work. The Employer’s actions are in violation of the Collective Agreement. …

3The Union seeks, among other things, that the position be posted and filled in accordance with the Collective Agreement. On January 27, 2022, the Employer denied the grievance.

4The Employer subsequently learned that the Union had filed two earlier grievances. In G-114-17-TS, the Union alleged:

The Union hereby grieves the Employer’s ongoing violations of the Collective Agreement whereby supervisory personnel are performing bargaining unit work, namely, the duties of Transit Safety Officers. Sgt. Langley conducted an investigation on October 23, 2017 that is work performed by Bargaining Unit members. The Employer’s actions are in violation of the Collective Agreement….

5The Employer’s response, dated March 21, 2018, states:

In this particular case TSO Danielle Kelly was being mentored by Sgt. Langley on the entire process of how to conduct an impersonation investigation. In hindsight the member TSO Kelly ought to have been the person entering the data rather than Sgt. Langley

6The Employer’s grievance system records show that the grievance was withdrawn on March 21, 2018.

7In January 2018, the Employer posted for the position of permanent, full-time Investigator outside of the bargaining unit. On January 22, 2018, the Union filed the following grievance, G-007-18-TS. It states:

The Union hereby grieves the Employer’s violation of the Collective Agreement by failing to post and recognize the position of Investigator, Security Operational Support (SEC0003) as a bargaining unit position.

8It sought, among other things, to have the position properly posted and filled in accordance with the Collective Agreement. According to the Union’s particulars, this grievance was filed when the Union became aware that a non-Union position titled “Investigator” was created.

9The Union’s particulars state that the Employer agreed that the Investigator role was bargaining unit work, and held the grievance in “abeyance” while the Union “worked with the Employer.” The Employer disagrees, stating that “Metrolinx did not agree that the Investigator position was in the bargaining unit” and that “Investigators continued to be employed permanently by Metrolinx in the “(non-Union) Investigator position with the full knowledge of the Union following the withdrawal of the grievances.” The Employer has requested more particulars about this claim.

10The particulars from both parties state that there was an agreement to temporarily assign some TSO’s to a newly created Investigations Unit, which was created in 2015, for up to two years. In the Employer’s view, this agreement was a secondment agreement, a developmental opportunity, for TSOs to learn more complex investigative work, as “investigators” were non-union roles. In the Union’s view, “[i]t was always the Union’s understanding that these temporary placements were within the bargaining unit…”

11Further, the Employer presented an email exchange dated July 25, 2018 regarding the “grievance concerning investigator posting.” Nancy Marchant, Senior Employee Relations Consultant wrote to Union Representative Chris Broeze, as follows:

Hi Chris,

I was asking Randy Cowan about Grievance G-007-18-TS; this is the grievance concerning the “Investigator” position.

Randy tells me that with the union’s input a few tweaks were made to the job posting, and that the posting went up without any further concerns from the union.

Unless I hear otherwise, I will close the grievance file, as I assume the union’s concerns have been dealt with.

Mr. Boeze responded the same day:

Hi Nancy,

On a without prejudiced precedent basis the Union would like to withdraw the grievance.

A minute later, Ms. Marchant replied, “thanks, Chris.”

12The parties are still attempting to determine more specifics about this exchange and withdrawal, which has been challenging as those involved on both sides have either left their positions with the Employer or are in different roles.

Reasons for Decision

13The Employer contends that because the Union had filed the two earlier grievances concerning the Investigator position and withdrew them, the Union is precluded from raising the same issues now in the December 10, 2021 grievance. It asserts that issue should be determined as a preliminary matter, and therefore requests bifurcation of this proceeding. The parties argued that issue at the hearing on November 14, 2023, and submitted relevant caselaw. ¹

14On November 21, 2023, I requested that the parties submit additional caselaw on the following question: If a grievance raises the same issue as one which was previously withdrawn, what impact does that have on a subsequent grievance? Both parties submitted additional caselaw.²

15The parties agree on the standards used by the Board to determine the issue of bifurcation. They disagree on the application of those standards to the facts of this case.

16For the purposes of this motion, just based on the wording of the 2018 and 2021 grievances, I will assume they raise the same issues, between the same parties, based on the same Collective Agreement language, and were brought for the same purpose.

17In Re ATU, Local 1587 and Metrolinx, 2015 CanLII 76839 (GSB, Dissanayake), the Board adopted the criteria set out in Re Town of Amherst and P.A.N.S. (2011), 207 L.A.C. (4th) 90 (Richardson), at p. 98:

Bifurcation is appropriate where:

(a) The issues related to the preliminary objection are clearly separate and distinct from the merits of the grievance;

(b) A decision on the objection would be dispositive of the entire grievance (that is, it would eliminate the need for a hearing on the merits); and

(c) Such a disposition would save a significant amount of time and resources that would otherwise be necessary to hear the matter on the merits.

18The Board has consistently followed this approach. The caselaw also establishes that the decision whether to bifurcate a proceeding is a matter solely within the discretion of the Board.

19The onus is on the moving party to establish, on the balance of probabilities, that all of these factors exist. Also relevant are considerations of “practicality, economy, efficiency and fairness” to the parties.

20The parties strongly dispute whether these criteria have been met. The Employer contends that its objection to the arbitrability of the current grievance should be decided before a hearing on the merits, and that, if it is successful, would be dispositive and obviate the need for a hearing on the merits. It asserts that the legal issues involved in the preliminary objection are clearly separate and distinct from the merits of the grievance, that a decision on the objection would be dispositive of the entire grievance, and would save a significant amount of time and resources that would otherwise be necessary to hear the matter on the merits. It notes that we have two additional dates booked, and a hearing on the merits would require many more days of hearing. The evidence concerning the preliminary objection would involve how and why the earlier grievances were withdrawn and what were the parties’ understandings, versus the merits of the grievance – whether the work of the Investigator is bargaining unit work.

21The Union contends that there is a factually and legally complex history in regard to the Investigator position, and that history and context are relevant to both the Employer’s preliminary objection and the merits. That history, it submits, is critical to understanding what happened in 2017-2018, what the parties’ understandings were, and why a new grievance was filed in 2021. For this reason, the Union asserts that there would not be a significant amount of time and resources saved by bifurcation of the hearing. It also disputes that a decision on the preliminary issue would be dispositive of the grievance, and contends that the merits would have to be decided regardless.

22The Employer disputes the Union’s contention that substantial contextual evidence would be required to determine the preliminary motion, although counsel acknowledged that the parties do not fully know the evidence concerning the withdrawals of the grievances yet.

23Having carefully considered the documents submitted, the arguments of the parties and the caselaw submitted, I am not persuaded that the Employer has met its onus of establishing that the factors required for bifurcation have been met. Although the issue of whether the grievance should be barred is a separate and distinct legal issue from the merits, there is clearly a history between the parties concerning the Investigator position. That context may be relevant to understanding what occurred in regard to the 2017 and 2018 grievances, and what the parties’ understandings were at the time. Given the current disputes and lack of information about the withdrawal/abandonment of the 2017 grievance and the “withdrawal without prejudice” of the 2018 grievance, I am unable to determine the full scope of the evidence required (or available) to make a determination on the Employer’s jurisdictional objection and therefore whether hearing that issue as a preliminary matter would save time and resources, or be fair to the parties.

24Arbitrators have adopted different legal standards for determining when the withdrawal of a prior grievance precludes hearing a new grievance on the same issue. Some have taken a purely factual approach – if the grievances raise the same issue, between the same parties, under the same collective agreement, and were brought for the same objective, a second grievance may not proceed. Re City of Sudbury and C.U.P.E., supra; Re Turning Point Youth Services and C.U.P.E., supra. Others have adopted an analysis that requires a determination, based on the evidence, that the Union’s withdrawal may be clearly viewed as acceptance of the Employer’s interpretation of the collective agreement. See Re OPSEU (Hunt) and Ministry of the Attorney General, supra; CAW-Canada and Commercial Bakers Corp., supra; and, St. Lawrence Lodge and C.U.P.E., supra. If the latter standard is adopted, the history and context of the withdrawal is critical. Given the disputes between the parties about the facts surrounding the abandonment/withdrawals of the prior grievances, I am unable to determine that deciding the issue as a preliminary matter would result in substantial savings of time and resources. It might, but that is insufficient to order bifurcation. Based on “practicality, economy, efficiency and fairness”, I am unable to conclude that the standard for bifurcation adopted by the Board has been satisfied.

Conclusion

25For the reasons set forth above, the Employer’s request to bifurcate is denied.

Footnotes

1. 1In support of its position on bifurcation, the Employer cites to: Re Cherubini Metal Works Ltd. and USWA, Local 4122, 2008 CarswellNS 432 (Christie); Re Metrolinx and ATU, Local 1587, GSB No. 2021-1711 (GSB, Gee) (July 26, 2023); Brown and Beatty, Canadian Labour Arbitration, 5th Ed., Section 2:72, Res Judicata as Result of a Prior Award. In support of its position, the Union cites to Re ATU, Local 1587 and Ontario (Metrolinx- GO Transit), 2015 CanLII 76839 (GSB, Dissanayake); Re ATU, Local 1587 and Re Ontario (Metrolinx-GO Transit), 2016 CanLII 90065 (GSB, Dissanayake); Re OPSEU (Haist) and Ontario (Solicitor General), 2022 CanLII 122326 (GSB, McLean).
2. 2The Union cited the following cases: Re Attorney General and OPSEU (Hunt), 2004 CarswellOnt 10440 (GSB, Abramsky); Re CAW- Canada and Commercial Bakeries Corp. 2004 CanLII 94788 (ON LA), 2004 CarswellOnt 3434 (Brunner); Re City of Windsor and CUPE, Local 543, 2012 CarswellOnt 14815( Etherington); St. Lawrence Lodge and CUPE, Local 2107, 2013 CanLII 75618 (ON LA), 2013 CarswellOnt 16532 (Luborsky); Re OPSEU and Ontario (Liquor Control Board of Ontario)(Valade), 2022 CarswellOnt 18586 (GSB, Carrier). The Employer cited: Brown and Beatty, Canadian Labour Arbitration, 5th Ed., Section 2:72, Res Judicata as Result of a Prior Award; Re City of Sudbury and CUPE, Local 207, 1988 CarswellOnt 3855 (Reville); Re Turning Point Youth Services and CUPE, Local 3501, 2019 CarswellOnt 1716 (Slotnick).