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HomeMy WebLinkAbout2010-2210.Union.15-10-14 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2010-2210 Union#G-61-08 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Amalgamated Transit Union - Local 1587 (Union) Union - and - The Crown in Right of Ontario (Metrolinx - GO Transit) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Ian Fellows Ursel Phillips Fellows Hopkinson LLP Counsel Kassia Bonisteel Ursel Phillips Fellows Hopkinson LLP Counsel FOR THE EMPLOYER Glenn Christie Hicks Morley Hamilton Stewart Storie LLP Counsel HEARING October 6, 2015 - 2 - Decision [1] This is a proceeding with a history. A policy grievance dated June 16, 2008, was heard by the Board over eight days, and its decision was issued on August 12, 2014. An application for judicial review by the employer was heard by the Divisional Court on June 25, 2015. Its decision was released on July 27, 2015. [2] The grievance raised the issue of whether or not seven positions were included within the bargaining unit represented by the union. The union took the position that it had bargaining rights with respect to an “all employee” unit under the recognition clause of the collective agreement. It submitted in the alternative that if the Board finds the language in the recognition clause to be ambiguous, evidence relating to negotiating history and past practice would support its position. It further argued that the employer was estopped for asserting that the bargaining unit was not an “all employee” unit. The employer disagreed. [3] The second dispute relating to the scope of the bargaining unit was about whether or not office and technical employees were excluded from the bargaining unit. The employer asserted that they were excluded. The union took the position that the language excluding “office and technical staff” was inserted in the collective agreement by mistake, and urged to Board to exercise its power to rectify. In the alternative, the union asserted that the employer was estopped from claiming an exclusion of office and technical employees. [4] For purposes of this decision, it is sufficient to note that the Board held that the union was not entitled to an all employee bargaining unit. The union’s arguments based on negotiating history and past practice, as well as its estoppel argument were rejected. The Board concluded that the “all employee” language in the recognition clause was qualified by the words “as specified in Schedule A1 and A2, or as developed through the application of Article 9”. - 3 - [5] On the second issue in dispute, the Board upheld the union’s position. It held that the language in the recognition clause excluding “office and technical staff” was included as a result of a mistake on the part of the employer who prepared the language to be signed off, and that such an exclusion was not consistent with the agreement reached during bargaining. The Board applied the equitable doctrine of rectification to delete that exclusionary language from the recognition clause. [6] In its application for judicial review of the Board’s decision, the employer focussed on the Board’s decision to rectify the language in the recognition clause. The Court’s conclusion is summed up at para 2 of its judgement, where Swinton J. wrote: [2] In my view, the Vice-Chair of the Board reasonably concluded that rectification was an appropriate remedy on the facts of the case. He reasonably directed that the erroneous language, placed in the agreement as a result of error, should be removed. However, the interpretation that he gave to the rectified article and the ultimate order to the parties to agree on new language in the collective agreement were not reasonable. Accordingly, I would allow the application for judicial review and set aside that part of the award interpreting the rectified article and ordering the parties to agree on new language. [7] By way of remedy, the Court directed as fellows at para 41: [41] With respect to the remedy of rectification, the only aspect of the decision that is unreasonable is the order to the parties to agree on new language. That aspect of the award is severable from the rest of the award. Accordingly, I would allow the application for judicial review, set aside that part of the award ordering the parties to agree on new language that reflects an all employee O/T unit. This would leave in place the Board’s order that the language of the collective agreements in issue be amended to delete the exclusion of O/T staff from Article 2.1. [8] With that background, I turn to the issue presently before the Board. Following the court decision, the issue of the inclusion/exclusion of the seven positions identified by the parties to be in dispute was still to be determined. When the Board convened, the union sought to argue that in light of the recognition clause as rectified, all office and technical positions were in the bargaining unit, whether or not they meet the requirement in the recognition clause, “as specified in Schedule A1 and Schedule A2, or as developed through the application of Article - 4 - 9,” and that the employer is in any event estopped from asserting a contrary position. [9] The employer took the position that the union is not entitled to advance that argument. Counsel contended that the issue had been already decided by the Board in its decision, and the Board’s interpretation in that regard had been upheld by the court. It took the position that the issue of the interpretation of the scope of the bargaining unit had been determined and the only remaining issue was whether seven specific positions were in or out of the bargaining unit in light of the rectified language. The Board was functus and had no jurisdiction to hear more evidence and submissions on the issue of the scope of the bargaining unit. Counsel also submitted that the issue the union seeks to argue is precluded by the doctrine of res judicata, and would amount to an abuse of process. (For ease of reference all of the arguments by the employer are hereinafter referred to as “the functus motion”). [10] Once the foregoing dispute was joined, the employer moved that the Board hear and determine its motion as a preliminary matter, before dealing with the merits of the grievance relating to the inclusion/exclusion of the seven specific positions. The union urged the Board to deal with the functus motion as well as the merits, and rule on all issues at the conclusion of the hearing. This decision deals solely with the issue of whether or not those two matters should be heard together as proposed by the union, or bifurcated as proposed by the employer. [11] The employer referred to the following arbitral decisions: Re Canadian Broadcasting Corporation and C.U.P.E., (1991) 22 L.A.C. (4th) (Thorne); Re Town of Amherst and P.A.N.S., (2011) 207 L.A.C. (4th) 90 (Richardson); Re Halifax Regional School Board and N.S.T.U.; (2002) 116 L.A.C. (4th) 412 (McDonald); Re Ontario (LCBO) and O.L.B.E.U. (2005) 142 (L.A.C. (4th) Dissanayake); Re Abbotsford Police Dept. and Teamsters, Local 31 (2007) 168 L.A.C. (4th) 245 (Coleman); Re Cherubini Metal Works Ltd. and U.S.W.A., Local 4122, (2008) 172 L.A.C. (4th) 1 (Christie); and Re Cargill Foods and U.F.C.W. - 5 - Local 175 and 633, (2009) 185 L.A.C. (4th) 167 (Marcott). The union also relied on substantially the same authorities. [12] The parties agree that the decision whether to bifurcate a proceeding is a matter solely within the discretion of the Board. The circumstances in which an arbitrator should exercise the discretionary power to bifurcate has been discussed in the jurisprudence. The decision depends on the particular circumstances of each case. The relevant factors for consideration have been described in different ways. In Re Canadian Broadcasting Corp (supra) at p. 18, the arbitrator states: If it were clear that the preliminary issue could be dealt with separately from the merits, this would be the very sort of case in which a preliminary determination should be made. It appears that the evidence on the merits will be extensive and that going into the merits may be stressful for the grievor and others. If the evidence on the preliminary question could be restricted to that issue and dealt with fairly expeditiously, the possibility that the preliminary issue might dispose of the whole matter would make it very desirable to deal with the preliminary issue first. [13] In Re Town of Amherst, (supra) at p. 96, the Board wrote: [30] Third, bifurcation risks adding delay and expense to a process that was and still is intended to be expeditious and relatively inexpensive. The issue of delay and expense may not have been as important a concern in the 1970s when, by anecdotal account, most arbitrations were quickly arranged and quickly heard. The risk is much higher now, when arbitrations take longer and are generally more difficult to schedule, with delays of several months if not more being now the norm. [31] The principle of “speedy relief” does, however, support bifurcation in an appropriate case. Where a ruling on a preliminary objection would, if successful, avoid days if not weeks of evidence – or where the issues on the preliminary objection are separate and distinct from those that would have to be argued and considered on the merits – there is much to be said for bifurcation; see. For e.g. Cherubini Metal Works Ltd and USWA, Local 411 (2008) 72 L.A.C. (4th) 1 (Christie) at pp. 28-29; Canadian Broadcasting Corp and CUPE (Broadcast Council) (1991) 22 L.A.C. (4th) 9 (Thorne) at p. 18. [32} It may be said then that while there is a “general reluctance on the part of arbitrators to bifurcate hearings:” B.C.T. Local 446, supra at para. 35, the ultimate decision is dependent “upon fairness to the parties, and the practicality and economy of time:” Toronto (City) and CUPE, Loc. 79 (2004) 28 L.A.C. (4th) 217 (Kirkwood) at p. 220. - 6 - [14] In Re Ontario (LCBO) (supra) at p. 446-447, the Board observed, “What is clear from the case law is that the decision to bifurcate depends in each case, upon the considerations of practicality, economy, efficiency and fairness.” [15] In Re Town of Amherst, (supra) at p. 98, after a review of the case law, the Board summarized the principles as follows:, [37] In the end the Board is of the view, having considered the authorities relied upon by the parties as well as their submissions, that bifurcation may be appropriate where: a. the issues relating 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, would eliminate the need for a hearing on the merits); and c. such a disposition would save significant amounts of time and resources that would otherwise be necessary to hear the matter on the merits. [16] Criterion (a) above is clearly met in the present case. The union did not argue to the contrary. The employer’s motion involves legal arguments based on the concepts of functus officio, res judicata and abuse of process. These are matters which are clearly distinct and separate from the merits of the grievance relating to the inclusion/exclusion of seven specific positions from the bargaining unit. [17] Application of criteria (b) and (c), however, do not support bifurcation of the instant proceeding. Both parties agree that the merits of the grievance would have to be determined regardless of the disposition of the employer’s motion. On the issue of efficiency, ie. saving of time and resources, the union made submissions that there is potential for significant delay in obtaining a decision on the merits of the grievance if the proceeding is bifurcated. It was argued that upon the release of the Board’s decision on the functus motion, there could be “multiple judicial review applications”. The Board may not be able to dispose of the merits while court proceedings were on-going. Counsel submitted that it would be very disruptive to have parallel proceedings at the Board and the courts. With respect, the Board does not attach any weight to this submission. The Board is not prepared to exercise its discretion in anticipation, indeed on the basis of mere speculation, of potential judicial review of its decisions. It must - 7 - make its decision based on its view of what is appropriate in light of the applicable principles. [18] Nevertheless, the employer did not argue that bifurcation would result in any saving of time or resources. The Board concludes that it is very unlikely any such savings would result. At best, this is a neutral factor. [19] Employer counsel submitted that the importance attributed in the case law to the criterion that determination of an issue in a preliminary way results in the disposition of the grievance in its totality must be seen in context. In each of those cases, the dispute about bifurcation arose at the commencement of the hearing before any evidence had been heard. Usually the issue of bifurcation arises at that stage. The instant case is an exception. Here, the Board has heard all of the evidence. Decisions have been issued by the Board, as well as the courts. The motion in question is based on legal concepts. The issues in the motion are totally unrelated to the issues that arise in the litigation of the merits of the grievance. Thus, it was argued that in light of the unique circumstances of this case, the Board should exercise its discretion in favour of bifurcation. Counsel noted that at the commencement of the hearing the parties had agreed to have the issue of the scope of the bargaining unit determined before dealing with the inclusion/exclusion of specific positions. He submitted that bifurcation would be consistent with that agreement. [20] The foregoing submissions by the employer does nothing more than further support and reinforce the undisputed fact that the employer’s functus motion is separate and distinct from the merits of the grievance. Therefore, it is possible to hear and determine the motion in a preliminary way without the risk of having to hear the same evidence twice. However, that by itself is not sufficient reason to bifurcate proceedings. The case law contemplates not only that the matters are severable and amenable to bifurcation without risk of duplication of evidence. There has to be some benefit resulting from bifurcation. The jurisprudence contemplates that bifurcation results in saving of time and/or resources. It further - 8 - envisages that bifurcation of the matter has the potential of disposing of the whole grievance. This requirement is also related to efficiency, because where the grievance is disposed of in its totality, there would be significant saving of time and resources. This would have been the case, for example, if the disposition of the functus motion had the potential of disposing of the merits of the grievance relating to the seven positions. It is agreed, however, that the merits of the grievance would have to be heard and determined regardless of the outcome of the functus motion. The case law does not support a proposition that bifurcation is appropriate merely because it can be done conveniently. [21] While it is possible to hear the employer’s motion in a preliminary way, there is no advantage to be gained by doing so. There is no concern about fairness. There is no suggestion that dealing with all of the issues in a single hearing has the potential of causing prejudice to either party. In the circumstances, it is not appropriate to bifurcate the proceeding. [22] The Board remains seized. The hearing will continue in accordance with the foregoing. Dated at Toronto, Ontario this 14th day of October 2015. Nimal Dissanayake, Vice-Chair