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HomeMy WebLinkAbout2010-2210.Union.20-04-23 Decision 2010-Crown 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 Arbitrator FOR THE UNION Ian Fellows (Counsel) Ursel Phillips Fellows Hopkinson LLP Kassia Bonisteel (Counsel) Ursel Phillips Fellows Hopkinson LLP FOR THE EMPLOYER Glenn Christie (Counsel) Hicks Morley Hamilton Stewart Storie LLP HEARING Jan. 24, 25, 26, Oct. 12, 13, 18, 31, Nov. 6, 8 of 2017; Sept. 25, 26, Oct. 3, 4 of 2018; and March 22, May 10, July 2, Oct. 10 and Nov. 1 of 2019 2 Decision [1] The union filed a policy grievance dated June 16, 2008. For present purposes it suffices to note that the grievance was about the scope of the bargaining unit. The Board issued its decision on August 12, 2014. The employer sought judicial review, and the Divisional Court’s decision was released on July 27, 2015. The issues in dispute, the Board’s disposition of those issues, were set out in a subsequent decision of the Board dated October 14, 2016, at paragraphs 2-5, as follows: [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”. [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. 3 [2] The foregoing findings by the Board were upheld by the Court. The parties came back before the Board for a determination whether the seven specific positions in question were included or excluded from the bargaining unit in light of the rectified recognition clause. [3] What transpired when the Board reconvened on October 6, 2015 is set out in the Board’s decision dated October 14, 2016 at paragraphs 8-10: [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 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. 4 [4] The employer’s request for reconsideration of that decision was denied by the Board in a decision dated November 1, 2016. [5] The union claims the following 7 positions to be included in the bargaining unit: Customer Care Coordinator, Project Officer, Business Analyst, Route Analyst, Transport Scheduler, Facility Development Supervisor, Route Transit Enforcement Scheduler. [6] The parties agreed that the Recognition clause as rectified should read 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 about 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 Ac, 1993. [7] The parties also referred to article 9.4, the relevant part of which reads: The Employer shall notify the Union when a new ATU position has been created and shall present a copy of the relevant job description to the Union. The job shall be evaluated in accordance with Article 9.4(2), 3.2, and it shall include a job rate applicable to Schedule “A1” or “A2”. In the event that the new job is posted and filled without having first been evaluated in accordance with Article 9.4(2), 3.2, the position will be filled and the employee assigned a job rate in Schedule “A1” or “A2”. Should the evaluation be greater than the assigned rate, the employee will receive full retroactive pay from the date hired in the new classification. [8] In the instant proceeding the union argued that any newly created position, whether or not it includes duties and responsibilities performed by bargaining unit employees, is within the bargaining unit, provided that it is not specifically excluded by article 2.1 or the Crown Employees Collective Bargaining Act (“CECBA”). Evidence was led that until 2008, the employer’s practice was to treat new positions, including all office and technical positions as bargaining unit positions, unless excluded under CECBA. It was the union’s position that all seven positions in dispute were union positions whether or not they included work 5 performed by bargaining unit employees. The union argued that the employer in any event is estopped from asserting that all office and technical positions are excluded unless specified in schedules 1 and 2. The foregoing hereinafter will be referred to as the union’s “scope argument”. [9] The union’s second argument, is hereinafter referred to “the Bargaining Unit work” argument. It took the position that if its scope argument is not successful, two of the seven disputed positions, namely Project Officer (“PO”) and Customer Care Coordinator, (“CCC”) nevertheless would be within the bargaining unit because those positions had duties and responsibilities very similar to those of bargaining unit positions, primarily Project Coordinator (“PC”) and Station Attendant (“SA”) respectively. [10] The employer agreed that the union’s bargaining unit work argument is properly before the Board. However, it takes the position that the Board has already interpreted the collective agreement and rendered its decision on the scope of the bargaining unit, and that the union is not entitled to relitigate that issue. The Board is functus in that regard. The scope of the bargaining unit argument [11] Union counsel repeatedly submitted that the Board could not be functus on this issue because its interpretation of the scope clause was on the basis of the pre- rectification language. The Board has not had the opportunity to interpret the scope of the bargaining unit in light of the rectified language. That is the interpretation the union was seeking, and the Board has jurisdiction in that regard. [12] The parties referred me to numerous court and arbitration decisions on the doctrine of functus, including the leading authority on the application of the doctrine to administrative tribunals, Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848 s.c.c.). In Chandler (supra), Sopinka J. reviewed the judgement of the Supreme Court of Canada in Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 186, where Martland J. found in the language of 6 the statute of question an intention to enable the Immigration Appeal Board to hear further evidence in certain circumstances although a final decision had been made. At. Pp. 861-862, he wrote: I do not understand Martland J. to go so far as to hold that functus officio has no application to administrative tribunals. Apart from the English practice which is based on a reluctance to amend or reopen formal judgments, there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra. To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal. Accordingly, the principle should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation. This was the situation in Grillas, supra. [13] At p. 862, Sopinka J. went on: Furthermore, if the tribunal has failed to dispose of an issue which is fairly raised by the proceedings and of which the tribunal is empowered by its enabling statute to dispose, it ought to be allowed to complete its statutory task. If, however, the administrative entity is empowered to dispose of a matter by one or more specified remedies or by alternative remedies, the fact that one is selected does not entitle it to reopen proceedings to make another or further selection. Nor will reserving the right to do so preserve the continuing jurisdiction of the tribunal unless a power to make provisional or interim orders has been conferred on it by statute. See Huneault v. Central Mortgage and Housing Corp. (1981), 41 N.R. 214 (F.C.A.) [14] In order to determine the functus issue here, it is necessary to examine what issues were before the Board, what issues were decided by the Board, and what 7 issues remained to be decided. In the first paragraph of its decision dated August 12, 2014, the Board recorded that the policy grievance before it was about the employer’s failure to recognize a number of positions as bargaining unit positions, and that “the parties agreed that the Board should initially render a decision on the proper interpretation of the recognition clause and remain seized”. [15] At the time article 2.1 (recognition clause) read: 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 about 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 Ac, 1993. (underlining added) [16] Thus, the Board undertook to determine two issues, the scope of the bargaining unit, and the motion for rectification of the language excluding office and technical employees. As agreed between the parties, the Board did not deal with the dispute between the parties, as to whether specific positions were included in the bargaining unit. At paragraph 24 the Board wrote, “However, the exclusion/inclusion of particular positions is not an issue the Board is called upon to determine at this time …” [17] In interpreting article 2.1 the Board disagreed with the union’s assertion that it was entitled to an “all employee” unit, subject only to exclusions specified in the article or exclusions under CECBA. In so finding, at paragraph 21, the Board concluded: [21] The Board agrees with employer counsel that the words “all employees of the employer” in article 2.1 must be read together with the rest of the sentence, including “as specified in schedule “A1” and “A2”. When that is done, the “all employees” language, in the Board’s view, is qualified by the words “as specified in”. The phrase “all employees” cannot be read separately from the rest of the sentence. To illustrate, if a provision reads “All employees of the employer who have more than 5 years of service shall be entitled to …”, the appearance of the words “all employees” is qualified by and made conditional on the latter 8 phrase. Entitlement is limited to all employees who meet the 5 years of service requirement. That is the outcome on a plain reading of all of the words. [18] Having interpreted the effect of the words “as specified in schedule “A1” and “A2”, at paragraph 24 the Board interpreted the significance and meaning of the words “as developed through the application of article 9”, as follows: [24] The present collective agreement in article 9 also sets out a process whereby positions not specified in the Schedules may be added to the bargaining unit, when “a new ATU position is created”. In that sense, it may be stated that the bargaining unit is not limited or confined to the specific classifications specified in the schedules. That is, where new positions are created, the scope of the bargaining unit has the potential to expand beyond the listed classifications. However, that can happen only where a new position is “developed through the application of article 9. If Re Budd Automotive Co. (supra) is of relevance to the instant parties, it is to the extent that it has held that classification and position titles are not determinative, and that inclusion or exclusion must depend on actual duties performed. If that rationale is applied to the terms of the instant collective agreement, it may be open to argue that a particular title or classification assigned to a job is not dispositive. If a position with a title not listed in the schedules involves duties and responsibilities similar to duties and responsibilities of a position listed, it may be held to be included in the bargaining unit. That in essence is what the Board held in Re Budd Automotive Co. [19] Thus it is clear that the Board interpreted article 2.1 and decided that a position is included in the bargaining unit, only as specified in the schedules or as developed through the application of article 9. It also interpreted article 9 and set out how its application may impact the scope of the bargaining unit. The union accepted that the foregoing decisions by the Board were not affected by the court decision on judicial review. [20] I agree with union counsel that the Board made its decisions on the basis of the language of article 2.1 before it was rectified. The Board has not had the opportunity to receive submissions on the scope of the bargaining unit following the rectification. However, in the circumstances here, the union is not entitled to reopen the very same argument it made and was rejected. The only change that 9 resulted from the rectification was the deletion of the wording in article 2.1 explicitly excluding office and technical employees. Subject to that deletion, the language in article 2.1 remains the same. The point is that the deleted language has no bearing on or relevance to the Board’s conclusion that any position, to be included in the bargaining unit, must meet one of the conditions that qualify the “all employee” language. The union asserted that the rectification had changed the language of article 2.1 and that the Board had not interpreted that changed language. While that is true, the union did not explain how that change could possibly affect the Board’s decision. Instead, it purported to revisit the same argument it had made unsuccessfully. [21] The Board accepts that the union had argued in the earlier proceeding that office and technical employees are included in the bargaining unit. It argued that the language excluding those employees was an error and not one intended by the parties. The Board upheld that position of the union, and the exclusionary language was deleted. It follows that all office and technical employees are not necessarily excluded. However, the Board’s decision on the scope of the bargaining unit still stands. Specific office and technical positions could be in the bargaining unit, provided they meet one of the conditions in the recognition clause, namely as specified in the schedules or as developed through the application of article 9. [22] The union is not entitled to reargue an issue already decided merely because there has been some change in the language of the article, when that change has no relevance or bearing on the Board’s decision. In Re Ross, 1981-0407 (Gray) the Board rejected the following argument of the union set out at paragraph 38: [38] The union argues that the doctrine of functus officio only applies to a decision that is expressly final, and that as long as some issue remains undecided in a proceeding then the Board can revisit and change decisions it has made about other issues in that proceeding. The union here did not explicitly assert a broad right to revisit issues already decided, as the union in Re Ross did. However, in effect that is what the union 10 does when it argues in this proceeding that all employees are in the bargaining unit, subject only to exclusions specified explicitly. The union is not entitled to do so, because the Board has rejected that argument, its decision remains unimpeached, and is functus in that regard. [23] However, in the initial proceeding the union did not have an opportunity to argue that one or more office and technical positions are included in the bargaining unit on the basis that they meet one of the conditions as interpreted by the Board. Had the union sought to do so, the Board would not have been functus in that regard. The union did adduce evidence in relation to article 9. However, that evidence was not about development of office and technical positions through article 9. Rather, it was about the employer’s past practice in applying article 9 generally. [24] The union led evidence from Mr. Tony Norman, a union official, who was also a member of the Joint Job Evaluation Committee in 2006-2007. That evidence is about past practice. Evidence on past practice may be admissible in two circumstances. First, it may be allowed as an aid to interpretation of language which is ambiguous. The Board, however, has already concluded that there is no ambiguity in article 2.1. At paragraph 25 it wrote, “I conclude for the foregoing reasons that meaning can be given to the words expressed by the parties in article 2.1, and that there is no ambiguity, patent or latent.” The same argument the union makes now, was made by the union and was rejected. The Board, having decided that issue, is functus. [25] The second purpose for which evidence may be adduced about past practice is to establish estoppel. However, again this is an issue the Board has already decided. In its decision dated October 14, 2015 the Board summed up its initial decision as follows at paragraph 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 11 “as specified in Schedule A1 and A2, or as developed through the application of Article 9”. [26] In the initial decision itself, in rejecting the union’s assertion of estoppel, at paragraph 32 the Board concluded that “the union has not established that the employer made a representation that would lead to an estoppel.” The evidence the union has led from Mr. Norman in the instant proceeding it seems is an attempt to have the Board reconsider its decision, by providing the missing evidence of a representation by way of past practice. Assuming that this evidence would have been sufficient to ground an estoppel, the union is not entitled to revisit an argument it had already made unsuccessfully, by adducing additional evidence. The Board has decided the matter and is functus. [27] The Board has interpreted article 9 also; that it sets up a process whereby the employer evaluates new positions or changed non-union positions and adds them to schedules A1 and A2 as union jobs. Union counsel submitted that this interpretation leads to the absurd result that it would be up to the employer to decide whether a position is included in the bargaining unit. To justify such an absurd interpretation, very explicit language is required, such as “the employer has the sole discretion”. That, however, is not the Board’s interpretation of article 9. Article 9 sets out a process which allows the employer to initially evaluate new and changed positions and assign pay levels. However, the union is entitled to grieve if positions which in its view ought to have been added to the schedules, are excluded by the employer. Mr. Norman testified that he recalled the union doing exactly that some years ago with respect to a group of positions the union purported to exclude. In fact, the instant grievance is in effect challenging the employer’s decision to exclude the specific positions in dispute. [28] It follows that the union’s argument on scope of the bargaining unit is rejected on the basis that those arguments were heard and rejected by the Board previously, and the Board is functus in that regard. 12 The bargaining unit work argument [29] As noted, the union’s claim on the basis of this argument has now been pared down to two specific positions, namely CCC and PO. The union led evidence about duties and responsibilities of these two positions, which it asserts are very similar to duties and responsibilities performed by positions included in the bargaining unit. [30] The union’s evidence was focussed primarily on the duties of the bargaining unit position of SA, although reference was also made to some tasks performed by union members in the positions of Customer Services Officer, Agency Officer and Transit Safety Officer. [31] Ms. Catharine Borrens commenced employment with the employer as a SA in 2009 at the Pickering GO Station, and had worked at the Yorkdale Station before transferring to the Union Station in September 2009. In the period June to December 2010 she also worked as a CCC on a temporary assignment. She is also a shop steward primarily responsible for SAs, a position she has held for over three years. [32] When union counsel asked Ms. Borrens what duties a SA performed, she replied that “they provide customer service to all individuals who enter the Union Station”. Asked what customer service was provided by SAs, she said, “They direct the public to local and event locations”. When counsel asked whether SAs are “involved with fare” she replied “Yes they are responsible for all fare media they sell”. Asked what a SA’s involvement was, with fare media, Ms. Borrens said, “when I started as a SA, I sold ten ride monthly passes. Then we converted to Presto in 2010, but I still sell single ride tickets”. Asked for her duties relating to Presto, she said that SA’s issue cards, reload them, replace damaged cards, and provide information to customers on how to use the Presto card on GO and other transit systems, block stolen cards, and fix any errors on a card like underpayments. She said that SAs also deal with customer disputes/complaints 13 by making adjustments on their cards. She said, “We are the one-stop shop for that”. [33] Asked if SAs had other duties, Ms. Borrens said that they issued refund vouchers if a train is late more than 15 minutes, provided schedule information to customers, tell them how to get to the station where a customer wants to go, what it will cost, where transfer locations are and how to read signage boards. She testified that customers ask for directions to locations like the ACC and Rogers Centre, and even about what other transit systems they can use to get somewhere, and about their fares. SAs get familiar with that type of information in their job, and are able to assist. [34] Ms. Borrens testified that as a SA she did “Way Finding”, a term used to describe an employee accompanying a customer seeking directions to a location within the Union Station building complex. If a customer physically or visually impaired or in a wheel-chair needs assistance to go to a particular location, she accompanied him/her there. [35] Counsel asked Ms. Borrens why she said SAs are a “one stop shop”. She said that if a customer raises an issue, the SA “finishes” the issue and will not direct the customer to talk to someone else. Primarily the issues raised are fare disputes or complaints that a bus or train was late or had left early. If the SA is unable to resolve it, the SA asks the person whether he/she wants to make a complaint, and the SA fills out a complaint form and forwards it to the Contact Centre. [36] Ms. Borrens testified that at Union Station SAs are very rarely involved in medical or other emergencies, but that at stations outside Union, SAs were “first respondents” for emergencies. She testified that outside union, stations are staffed by SAs and plant service employees, and there are no supervisors on site. Therefore, SA’s do “everything”. She testified about the following duties: opening and closing of the station; doing the Garda cash exchange; ordering fare media supplies; receive mail, posting notices; and operating the lost/found. She said 14 that opening a station involves the SA who arrives first in the morning de- activating the alarm, getting the radio, and doing a “station check” by walking the entire property looking for any issues like vandalism or ice build up. She testified that other SAs are not scheduled to do station checks during the day, but they do that indirectly by reporting any issues they observe. [37] Ms. Borrens testified that during her six months as a temporary CCC at Union Station Presto was being rolled out, and she spent a lot of her work time with the Presto Outreach Group, consisting of contract employees, providing information and answering customer’s questions “like where to buy tickets, where platforms are, how to get to the TTC, Rogers Centre or ACC”. She also did some “way finding”. She said that the questions she got and the way finding she did as CCC were similar to what she did as SA. [38] Ms. Borrens stated that currently SAs do “the snake line”, that is directing customers in the winding line up to open sales booths, only if there was a surplus of SAs. Then one SA would go out and do that. She said that as a CCC also, customers brought complaints to her. The difference was that a SA sent completed complaint forms only to the Contact Centre, whereas CCCs sent them to the relevant departments also. She testified that CCCs at Union Station, like SAs at stations other than union, were first respondents for medical distress situations. The role of both, SAs outside Union and CCCs at Union, was the same. They notify the Central Contact Centre and Transit Safety, and provide first aid to the person until EMS arrives and takes over. [39] Ms. Borrens was asked whether she did any duties as CCC which she did not do as SA. She said that CCCs did monthly and annual reports on train delays/credit vouchers and issues relating to signage, construction and Presto, and sent reports to the relevant departments. During her time as CCC SAs did not do that, but she had seen SAs do Presto Settlements. That is now done by CCCs. 15 [40] Union counsel put to Ms. Borrens a document titled “Customer Care Coordinator Desk Procedures, Station Operations Central, updated June 2016.” It includes sections titled “Overview”, “Job Synopsis”, and “Assigned Floor Coverage”, which set out duties and responsibilities under more than 20 categories. Description of duties and responsibilities are listed under multiple bullets under each of the categories, in the same way a typical job description would. Ms. Borrens commented that she sees a lot of duties listed there, which were similar to what she did in the six months she worked as a CCC. Ms. Borrens commented on whether CCCs and/or SAs, and/or other bargaining unit employees did the duties listed in each bullet, under the three titles. [41] Similarly, counsel put to Ms. Borrens, the position description for CCC Bus Operations, revised November 13, 2009; Position Description SA revised March 10, 2020; and a draft position description for CCC to reflect CCC duties as of 2016, created for use at the instant arbitration. Again, Ms. Borrens was asked to comment on each of the duties listed in these position descriptions, whether CCCs and/or SAs or other bargaining unit employees did those. Ms. Borrens gave detailed explanations on each bullet. I have carefully read and considered that evidence but will not set it out here. It suffices to observe that the bullets for most part set out discreet tasks performed by incumbents. Ms. Borrens explained what tasks or aspects of the tasks were performed by others not covered by a particular position description. [42] Union counsel asked Ms. Borrens whether a particular number of CCCs were scheduled to work on the floor. She said that such scheduling started towards the end of her period as a CCC at Union. She testified that SAs did not work on the floor at Union Station because they worked in the “Sales Booth”. Outside Union, however, if multiple SAs work at a station one maybe able to go out to the floor. [43] Counsel asked Ms. Borrens how much time a SA would spend selling fare media versus other duties. She replied “selling alone I’d say will be about 30%. Providing information, customer service, way finding, and fixing issues will be 16 about 70%”. She said that as CCC she was on the floor in the public area 100% of the time answering questions, assisting customers, doing way finding, providing information, dealing with fare issues and doing walk-arounds. She did that approximately 6½ hours out of her 8 hour shift with a ½ hour lunch break. She said that in 2016 CCCs started coaching SAs by doing “face to face” sessions. A CCC would sit with a SA and discuss a topic such as “Accessibility issues at Union Station”. She described the most recent “face to face” she had with a CCC as “coaching”, and said that the session was about 1¼ hours long. [44] In cross-examination, Ms. Borrens testified that the wage rate for the Union Station CCC position was higher than the maximum rate for the SA position. She agreed that every station outside Union, except two, had one Plant Service Person (”PSP”). The PSPs had a base station but were mobile. They were responsible for a number of stations, and may have to go to several stations during a shift. [45] Ms. Borrens agreed with all of the following, employer counsel put as “a typical day” at stations outside Union. The SAs have schedules which set out days and hours of work. The SA who starts first on the particular day arrives and opens the station with keys provided, de-activates alarms, does a station check, and sends a report to the contact centre, noting any issues she finds. She then opens the safe which contains two cash floats of $200, one for each of the two sales booths, as well as another station float. She takes her float of $200 and puts it in the drawer in her booth, and sits facing the glass and is ready to work. Sometime after, a second SA arrives, gets her float from the safe and sets up her booth and is ready to work. The SAs then make transactions as passengers turn up at the wickets. At the end of the shift the SAs do a reconciliation of the transactions done. Any cash in excess of the $200 float they started with becomes a deposit, and that is input into the system along with debit and credit card transactions done. Sometimes there in balancing at shift end shortages or overages would be found. Shortages come out of the SA’s pocket. 17 [46] Ms. Borrens agreed that some stations like Oakville could have up to four SA’s working at the same time during rush hours. On the other hand, some stations like Kitchener are agencies, and have no SAs. Others like Barrie Allendale have SAs in the mornings but not evenings. She reiterated that besides the SAs, mobile PSPs may visit any of these stations at any time. [47] Ms. Borrens testified that SAs do not open the station at Union Station. At Union typically there are 10 booths each with a float, plus two extra reserve floats of $500 each. The schedule specifies the booth assigned to each SA. At the end of the shift, each SA cashes out in the same way as SAs outside Union. She said that Union station is always busy, with lineups of 40-50 people. In the afternoons the line could be as many as 100. [48] Ms. Borrens testified that Union is staffed by eight SAs in booths in the central part, and two more in the outer area during rush hours. SA supervisors are also there always. At least one PSP and a Transit safety person works 24 hours a day. CCCs also are on duty from 6:00 a.m. to midnight. She said that as a SA she was in the booth for about 6½ hours out of the eight hour shift, and did 300 to 350 cash and credit/debit transactions. A SA at the Bus Terminal would do approximately 400 transactions per shift since only two SAs work there. She said that on average it would take one minute to do a transaction, including the time answering a question while doing it. [49] Employer counsel put each of the duties and responsibilities listed in the job description for CCCs outside Union, and asked Ms. Borrens whether CCCs do those. For the vast majority she agreed they did. For some, she said she did not know. A few she testified, CCCs did not do. [50] Ms. Johanna Barbita has worked as a SA since 1990, including at Union Station from 1998 to 2000. She has also been a shop steward during much of that period and has been a member of the Joint Health and Safety Committee since 2016. Union counsel asked Ms. Barbita to describe the SA job. She replied, “Inspect 18 and report deficiencies in the property, maintain and secure station funds and ticket inventories, procure and secure lost and found articles, process ticket sales and collect revenue, offer information on the ticketing system, schedules, tariffs, local amenities and local transit systems.” Asked to describe a typical day for a SA now, she said, “The morning shift opens the station and does the safety inspection. They walk the grounds and look for any deficiencies to be reported, test all ticket processing machines and report deficiencies, check and count all station money for accuracy”. Ms. Barbita testified that at the Bronte Station where she presently works, the morning safety inspection takes 15 to 20 minutes. If there are issues, they are noted in the station logbook, and reported to the appropriate department. If there are unsafe conditions like broken glass the SA would sweep and clean it up. [51] Ms. Barbita testified that SAs used to order train and bus schedules and other supplies to hand out to customers. Since 2015-16 the CCCs started doing that. Information supplies are delivered daily by couriers. She said that information brochures on Presto is part of the material handed out to customers now when issuing Presto cards. The SAs place the order for Presto brochures with CCCs, and they deliver them to SAs. [52] Counsel asked what the SA would do after completing the safety inspection. She replied, “We do ticket sales and revenue collection, communicate with the GO Communication Centre, announce platform changes, train delays, and safety issues. We also help people on how to use the Presto card”. She testified that since Presto was new, SAs explained to customers how to set the card up, about the need to tap on and off, the seniors and student discounts etc. She said that now SAs deal with Presto issues all the time, including under payments and refunds. If the refund due is under $50, SAs are authorized to process the form and refund the amount on the spot. If it is over $50, the customer is asked to complete the form and mail it. She said that if a customer is entitled to a credit voucher or compensation because of an overcharge due to technical error, the SA would put money back into the Presto card. They also block lost Presto cards. 19 [53] Ms. Barbita testified that customers ask various questions, which SA’s help with by using the Trip links software they have. They ask about how to get to a particular address, do they have to transfer to another local transit system, about taxis, and where to wait for the train. SAs also receive complaints. If a train is late, SAs have to explain why. They can complain that the parking lot has not been plowed, washroom is too cold, a light is out or issues with GO trains or buses. The SAs fix complaints if they can. [54] Ms. Barbita said that in stations other than Union, there is no one to receive customer complaints. Some, but not all stations have an assigned Service Person 2 (“SP2”) to clean the station. A Mobile Service Person 1 drives from station to station to clean the others. She said that a SP2 is a bargaining unit member who does everything a SA does plus the cleaning. Asked whether she has seen any other bargaining unit employees at the Bronte station, Ms. Barbita said, “Plant Utility, mechanics, electricians, IT technicians come. Also Transit Safety Officers, couriers, and customer attendants.” She said that she has seen supervisors at Bronte only rarely when they “pop in”. She said that CCCs also pop in but not that often. Even when they come, they pop in and leave, that “it was more a social interaction to say how are you doing”. Ms. Barbita described “way finding” as “escorting passengers who need help from point A to point B”. She mentioned escorting those in wheelchairs, with visual or physical impairment, and helping people carry strollers, and luggage. She testified that recently, she received a call that a woman who was injured was arriving at her station on a particular train. She and a co-worker got a wheelchair and ice pack ready, met the woman at the platform and drove her to her car in the parking lot. She said that sometimes a boarding passenger may ask for assistance at the other end. Then, after helping the passenger board, the SA would arrange for assistance at the other end. She said that both SAs and CCCs do “way finding”, and added that at Bronte it is mostly SAs who do it. [55] Asked what record keeping duties are performed by SAs, Ms. Barbita mentioned the following: The station log book, daily sales report, receipt and return of coin 20 orders, maintain deposit money to go to the bank by armoured car, tag and bag lost and found items, and tickets ordered and received. Asked what she entered in the log, she said: the condition of the station on arrival, anything out of the ordinary like broken glass, the weather, any changes in train schedule or tracks, any people on site like scouts, any orders placed for Presto cards and any incidents or violence. [56] Ms. Barbita testified that closing the station after the shift is the responsibility of SAs. The SA secures all money, checks the station to make sure no one has passed out in the washroom or is sleeping, locks all doors, arm the alarm and leave. She said that every station has a defibrillator, and SAs are given first aid training. [57] Ms. Barbita confirmed that the SA job description is accurate. Union counsel reviewed with her all of the duties and responsibilities of a SA listed therein. Counsel asked Ms. Barbita whether her work as a SA at Union Station was the same as at Bronte Station. She said that at Union SAs did not open or close stations. She said that at Union, there was a Lost and Found counter and a Customer Service Office. SAs were assigned to work in both. SAs assigned to the latter dealt with customer complaints/concerns, and calculated refunds, but were not authorized to collect revenue. She said that the other difference was that operations supervisors were always on site at Union. [58] An exhibit titled “CCC - duties and Responsibilities”, a listing of twelve areas, with multiple bullets under each, was put to Ms. Barbita. Under title “Front line staff”, it states that CCCs ensure “day to day operations run smoothly, by providing assistance to SAs and customers as needed”. Union counsel asked Ms. Barbita whether she did that duty as a SA. She replied, “Yes. It is pretty much my whole job”. Referring to another listed CCC duty, Ms. Barbita agreed that she receives daily emails from CCCs informing which CCC to contact if there is a problem. However, in over 4 years she had to do that only about three times. Another duty listed is to the effect that CCCs “coach and provide information to SAs in regard 21 to procedures and SONs”. Ms. Barbita said that SONs (Station Operations Notices) set out changes to policies and procedures. She said that CCCs do that duty, but SAs did that before CCCs came. As a SA she still coaches and provides information to other SAs. She said, “We always help each other out”. She testified to the same effect about several other duties CCCs have to “assist SAs and passengers”, that SAs assist each other and passengers “pretty much every day”. Generally, except for a few, Ms. Barbita testified that SAs performed the listed CCC duties directly or indirectly. She testified that everyone does several of those duties. Her testimony was to the same effect, when union counsel reviewed with her the position description for CCC outside Union Station. [59] In cross-examination, employer counsel referred to the duty listed in the CCC Job Description as “escalating SA performance issues to the appropriate supervisor and/or manager”, and asked whether her testimony was that it is a part of the SA job. She said “yes”. Counsel asked how it could be so, when she also referred to that duty as “ratting”, and testified that she had never done it. She explained that it is done only as a last resort, and that she recalls once having to tell a supervisor that a fellow SA is always late. When counsel put to her that in chief she testified she had never done it, she said that she does not evaluate performance of fellow SAs, but on this one occasion, she was put in a position she had to raise it. [60] Counsel reviewed with Ms. Barbita the buildings within the Bronte Station. She agreed that in the main building there are 3 sales booths in a row, and some additional booths in other areas. She said that the SA on the 4:15 a.m. to 12:30 p.m. shift opens the station and prepares the station to open for sales at 5 a.m. A second SA starts at 5:30 a.m. and also starts selling at her booth. She said rush periods are 6:00 a.m. to 9:00 a.m. and 4:00 p.m. to 6:00 p.m., that during these periods two sellers work. Even in non-peak periods, there is selling going on and one booth is always open. In a shift, a SA does at least 100 transactions at the booth; more if there were sports events or concerts. 22 [61] Counsel put to her that during testimony she had referred to “sellers”, and suggested that she used “sellers” to refer to SAs. She agreed. She testified that a transaction could take 1 to 10 minutes. Always the customer wants something, for example a single ride to Union Station, or to recharge the Presto card, may also ask a question. Sometimes, customers come to the wicket only to ask a question, like when the next train is or to say she lost her umbrella what she should do. Ms. Barbita agreed that CCCs nor supervisors are “sellers”; that a Customer Service Ambassador (“CSA”) rides in the accessible coach of every train; and that they are also not sellers. She agreed that CSAs assist and provide information and answer passenger questions like SAs do. [62] Counsel put to Ms. Barbita that like SAs, others also report any deficiencies within the station or equipment issues. She agreed. She also agreed that someone finding a lost article can return it to any staff including a bus driver or a utility person, Ms. Barbita agreed but said that she thinks that only a SA can log returned articles since not everyone has access to the paperwork required. She also agreed that anyone asked is expected to provide information to customers, for example about Oakville Transit, but explained that SAs get most of the questions. Ms. Barbita further agreed that SAs are not the only ones looking for slip and fall situations in the winter. A PSP2 works at the station daily from 7:00 a.m. to 3:30 p.m. She also agreed that a mobile PSPI comes in at night to do cleaning, and GO Transit employees and other trades staff also come in GO vehicles. She agreed that she would have seen operations supervisors visit the station less than other SAs because in the last year she was on the 4:15 p.m. to 12:15 a.m. shift. [63] Ms. Barbita agreed that to answer questions about a Presto card, a SA is able to go into the card history only for the past three months, but supervisors and CCCs can access further back into the history. Counsel put to Ms. Barbita that the sales function has evolved from manually issued paper tickets to machines to validate packs of ten tickets, and now to automated Presto cards which can be read by computer. He reviewed with her various issues that can arise if a Presto card does not work or the passenger does not use it correctly. Ms. Barbita agreed that 23 when passengers come with those issues, SAs try to fix it. Sometimes the fix requires issuing refunds or credit vouchers. A SA is authorized to refund only up to $50. Credit vouchers may be issued for any amount due, but approval must be obtained from a supervisor to do so. [64] Counsel referred to Ms. Barbita’s testimony that only SAs receive complaints about parking lots not plowed, cold washrooms etc., and asked whether that is true. She explained that others like service and transit staff can take those complaints when they are there. When counsel put to her that SAs field most of that type of questions only because they are there the most, she replied “exactly”. [65] She agreed that SAs regularly send e-mails to supervisors, and that they are required to be copied to CCCs. Counsel referred to Ms. Barbita’s evidence that when CCC’s come to the station they have social interaction with SAs, and suggested that when they visit the station for work purposes, they do that because all CCCs are familiar with them. [66] Counsel put to Ms. Barbita that when she calls another station to notify that a passenger needing assistance would be arriving on a particular train, she is not informed who provided that assistance or what was done. She replied that she assumes that a CCC would be the one assisting. When a passenger needing assistance arrives at Bronte, Counsel asked whether she would leave the booth to assist the person if she was the only one available at the time. She said she would because that takes priority. She agreed that if there was a plant person available, he/she would do the assist, and that sometimes a CCC would show up and do it. [67] Ms. Barbita confirmed that in chief she testified that the duty listed the CCC job description, “Ensuring day to day operations run smooth by providing assistance to SAs and customers as needed”, was pretty much her whole job. Counsel put to her the CCC duty, “Calculate defective card loyalties on a monthly basis and reports are generated for the Customer Control Group to handle customer loyalty 24 issues” and asked how she did those monthly tasks. She replied that she read that differently. Loyalty is calculated on the basis of rides taken monthly. “A couple of times” she had calculated loyalty discounts for customers based on monthly travel, but she agreed that she did not sit down and go through everyone’s monthly Presto use, or generate any monthly reports like CCCs. Counsel put to her that in chief she testified that she did that monthly. She said that the duty as written could have “mixed meanings”, and that she interpreted it differently. Ms. Barbita agreed that like SAs, Transit employees, Customer Service Ambassadors, CCCs and supervisors all do passenger assists. She agreed that unlike CCCs, SAs do not do passenger assists other than at their own station. [68] Ms. Barbita agreed that the Position Mission and Mandate set out as follows in the SA Job Description has remained unchanged during her 27 plus years as a SA: Mission: “Under the supervision of the Supervisor Station Operations, ensure the care and control of all ticket stock, cash float, equipment, lost and found articles or other products”. “To attend to all duties, functions and responsibilities associated with the assigned location in a safe and efficient manner. To promote customer service and assist customers as required” Mandate: “This position is responsible for: selling all forms of transportation tickets/passes and other items as required and depositing revenues daily”. “Providing information to the travelling public and the appropriate handling of lost and found articles”. Counsel put to her that those two provisions describe the SA job at a high level, and that “that’s what you’ve done for 27 years as a SA”. Ms. Barbita agreed. Ms. Barbita agreed that Presto is still about selling tickets, although it is a different and more automated way of doing the sales function. [69] Ms. Lavanya Gnanaswaran started with the employer as a SA in the Eastern Region, and moved to Union Station in 2013, where she worked as a temporary 25 CCC for 6 months ending in July 2015. Since then she has been a SA in the Eastern Region. Union counsel asked Ms. Gnanaswaran to describe a typical day for a CCC at Union Station. She said that CCCs get a daily schedule assigning areas to work in. Usually it was 2-3 hours in the York concourse, and then at the Bus Terminal or some other areas. The job was to provide information to customers on routing, schedules etc. and to answer any questions. She said that the only difference between that work and the work of a SA is that a SA sat at the booth most of the shift. As a CCC she was out in the concourse or other customer areas most of the day. She said that it was very rare for others besides CCCs and SAs to provide information to customers. She testified that CCCs spend most of their time in the concourse. In the York concourse there are eight ticketing booths. More booths are located in the bus terminal and other areas. She said that CCCs in the bus terminal are out with the customers, providing information and making sure they board the right bus. If there is a long line up the CCC can ask the supervisor to put an additional bus. [70] Ms. Gnanaswaran testified that two SAs also work in two booths at the bus terminal. Asked to compare what the SAs did with what CCCs did, Ms. Gnanaswaran replied that SAs sell tickets, and added, “The only real difference is that they work in the booth and not out with the customers like CCCs”. She said that if there are long lineups and there is no CCC, a SA also can ask a supervisor for another bus. Ms. Gnanaswaran testified that as a CCC she did way finding. Asked if SAs did way finding, she said that in stations outside Union they do. [71] She testified that if there is a “snake line”, that is a winding line up of customers waiting to go up to a booth, a CCC stands at the front and directs customers to booths as they become available. Sometimes a SA not assigned to a booth may also put on a green vest and do the same. Ms. Gnanaswaran testified that sometimes long lines form at ticket vending machines also. Then a CCC would show them how to use the machine. She said that as a SA she also has helped customers at vending machines. 26 [72] Union counsel asked Ms. Gnanaswaran to what extent she did work as a CCC, which she did not do as a SA. She replied, “I’d say the only difference is being at the bus terminal and helping customers board buses. SAs don’t generally come out of their booths, so they are not able to do that duty”. She said that as a CCC she was scheduled at the Bus Terminal for 2 to 3 hours. [73] Counsel asked Ms. Gnanaswaran to compare the duties of a SA at Union Station with SAs working at other stations in the Eastern Region. She replied that at Union the main role for a SA was to be at the booth selling tickets and answering questions. She said, “In the East we are responsible for pretty much everything. If a customer needs assistance at the platform, we go and help. If there is a service disruption or delay, we make announcements. If there is any incident at the station, we do an incident report”. [74] In cross-examination, Ms. Gnanaswaran agreed that by working as a SA at Union and outside stations for about 7 years she has an “excellent” knowledge of the SA job, and by working as a temporary CCC for 6 months at Union and observing other CCCs she has at least “a very good” knowledge of the CCC job. Counsel asked whether, with that knowledge, she was saying that the SA and CCC jobs do “largely the same set of tasks”. She replied “yes”. Counsel asked, “not identical jobs, but very close?” She said “yes”. Counsel pointed out that the CCC job description requires a class “G” drivers licence and states that ability to obtain a “B” licence with “Z” endorsement is an asset, and put to Ms. Gnanaswaran that SAs are not required to have any drivers licence. She agreed. Counsel put to her that SAs do not drive GO vehicles, but CCCs do. She replied that CCCs outside Union do. [75] Ms. Gnanaswaran testified that in her temporary CCC position she was filling in for CCCs on vacation. Counsel put to her that it is possible that she was not asked to do some duties the CCC she was filling in for did regularly. She agreed and referred to special projects as an example. Counsel put to Ms. Gnanaswaran that in chief she said that as a SA she constantly helped customers get around 27 construction. She denied saying “constantly”, and said, “My main job was selling. So I couldn’t do it constantly”. [76] Counsel put to Ms. Gnanaswaran that GO employees other than SAs, such as uniformed Transit Safety and Maintenance Staff also assist customers from time to time. She agreed. She also agreed that “the main duties” for a SA are selling and customer service, both of which are done at the booth; that a SA spends most of the day selling at the booth with a cash float; that CCCs do not work at a booth do not have a float and do not sell anything; and that no one other than SAs sell anything sitting at a booth. [77] Employer counsel referred to the duty listed in the CCC job description as, “resolves escalated revenue collection issues and reconciliation of customer Presto accounts”, which Ms. Gnanaswaran testified was work she did as a SA, and asked how she did that. She replied that if a card was to be loaded a certain amount, but the correct amount was not loaded, she would resolve it. Counsel asked her, if that is an “escalated” revenue collection issue, could she think of any non-escalated revenue collection issue. She replied, “I don’t know”. [78] Mr. Rick Lehman has held the bargaining unit position of Project Coordinator (“PC”) since 2009, and was member of the Union Executive Board – Office, Financial, professional and Technical. He confirmed that the PC job description was accurate. Asked by union counsel to describe his job as PC, he said, “Its essentially a project manager job. We oversee projects from inception to completion. It includes liaising with internal and external groups, preparing project charters, compiling tenders for consultants and contractors, managing the work and handing over completed projects to the stakeholders”. He mentioned the following as projects he had overseen: Installation of a wind turbine at the Lisgar GO station, renovations at various stations, installation of ticket vending machines throughout the network for 2½ years, overseeing various projects at the Barrie station and the installation of UP express ticket machines at Pearson, Union, Bloor and Weston. Asked whether he had worked with POs, he said that during the 28 installation of ticket vending machines he had oversight of a group which included a PO. [79] The “Position Mission” in the job descriptions for PO and PC read as follows: PO: Under the direction of the Manager Strategic Planning or Senior Project Engineer/Officer, to manage the provision of complex integrated technical projects involving consulting services and corporate resources, in an effective, timely, consistent and cost effective manner, as required for excellence in customer service. PC: Under the supervision of the Senior Project Engineer/Officer, to coordinate the design and construction of assigned physical infrastructure projects, in a safe, timely, consistent and cost effective manner. Asked to compare the two “missions”, Mr. Lehman said that by what is written there, and from his experience, both jobs are similar. Both manage projects from inception to completion. Mr. Lehman stated that he did not know who POs reported to since 2012, but until 4-5 years ago they reported to a Senior PO or an Engineer, just like PCs did. He said that then there was a change, and Pos now report to “Project Managers”. However, he said that in most departments Project Manager was a revised title for Senior PO. [80] Two PO Job descriptions, one general and the other for POs outside Union Station, were exhibits. In addition, employer’s “particulars” updating PO duties and responsibilities were also put into evidence. Union counsel reviewed in detail the duties and responsibilities, as well the Position Mission and Mandate set out in those job descriptions, and asked Mr. Lehman to compare them with the provisions in the PC job description that applied to him. It is fair to sum up that Mr. Lehman’s testimony was to the effect that most of the duties and responsibilities of a PO, based on what is written, and from his personal observation, were similar to what he did as a PC. Asked to compare the education requirements in the PO and PC job descriptions, he concluded that “they look similar”. He also opined that the experience required is also similar in that “essentially both ask for project management experience”. 29 [81] In cross-examination, Mr. Lehman testified that in total there are 79 PCs, approximately 50 of them in the Capital Projects Group, 10 in Station Services, and 20 in the Railway Group. He said that roughly 70 to 80 percent of the PCs are professional engineers. Employer counsel referred to the employer; particulars to the effect that the PO in Revenue Accounting currently supervises 16 to 17 Revenue Accounting Clerks. Mr. Lehman testified that he did not know whether that is correct, but agreed that as a PC he did not supervise anyone at all. Counsel put to Mr. Lehman paragraphs 40 to 48 of the particulars relating to the PO in Revenue Accounting, and suggested that, “assuming those paragraphs are correct, that does not look at all like anything a PC does”. Mr. Lehman agreed that a PC would not do any of the supervisory duties. However, he pointed out that para. 45 states that in addition to the supervisory duties the PO liaises with contacts in other divisions of Metrolinx. He said that a PC also does that. Counsel asked Mr. Lehman whether he could name any position within Metrolinx that does not liaise in that way, and put to him that everyone, within the bargaining unit or outside it, liaises like PCs do. He agreed. [82] Counsel pointed out that paragraph 46 states that the Revenue Accounting PO has never acted as a lead on a large project, and put to him that, it is the opposite of the PC job, which is about being the lead on projects. Mr. Lehman agreed, but added that PCs do smaller projects as well. Counsel asked what proportion of his work as PC does not involve being the lead of a project. He replied, “very little”. [83] Mr. Lehman testified that the PC job description is generally accurate, except for some “errors” relating to reporting relationships which have now changed due to re-organization. He said that normally PCs report to project managers, but in some divisions project managers have alternate titles. Mr. Lehman agreed to the following as the role of a PC in relation to a project. A manager informs that Metrolinx has decided to do a specific project, e.g. build a structure. The PC coordinates and works with various disciplines and experts to define the specifics for the project. The finished design is done by a consultant, which usually is an external engineering firm. At a meeting attended by internal as well as external 30 people, the PC tries to ensure that the design meets the needs of Metrolinx, and that all “Ts” are crossed. The design is then approved and forwarded to the Procurement Department. A Request for Proposal is prepared and sent out by Procurement Staff, except that sometimes the PC may prepare it for smaller, less complex projects. If site visits are requested Procurement Staff arranges them. PCs, among others, attend site visits to answer any questions. Then Procurement announces the successful bidder for the project and gives the go ahead. The PC contacts the successful bidder and the project begins. From that point, the PC named in the contract becomes the contact person for Metrolinx. The PC arranges meetings with officials of the city and other agencies, who need to sign off. [84] Mr. Lehman testified that a PC oversees 2 or 3 projects at the same time, and that most are construction related, although there are others like IT projects. Most take about one year to complete the design. In that period the PC spends little time on the project. When questioned about testimony that, like POs, PCs also make recommendations for continuous improvement and policy changes, he agreed that other Metrolinx staff also make those recommendations. [85] Counsel asked Mr. Lehman what he meant by “a project”, when testifying. He said that he went by the definition used by the Project Management Institute, “an undertaking which has a definite start and a finish”. Counsel put to him that under that definition painting lines which takes ten minutes or sending someone to buy pencils would be projects. Mr. Lehman agreed. [86] Counsel read particulars to the effect that the PO “ensures that the appropriate stakeholders are involved in reviewing tenders and provides input on which tender should be awarded the contract”, and suggested that PCs do not do that. Mr. Lehman agreed, but commented that he doubts that POs do that either. Again referring to the particulars counsel questioned Mr. Lehman about the PO leading certain working committees, and asked whether he has done that as a PC. Mr. Lehman said that he did not know what those committees are. Counsel referred 31 to POs liaising with the Capital Projects Division to “specifically determine what IT services will be required for construction projects, and to ensure that the Design Requirement Manual is kept updated and complied with in every project. Mr. Lehman commented that POs do not decide what IT services are required and that he was not sure why POs would liaise with Capital Projects. Upon further questioning, he agreed that it is possible the POs do those duties. When counsel put that, as a PC, he did not update the manual, Mr. Lehman agreed, but added that PCs and other bargaining unit employees provide some input. Employer Evidence [87] Mr. Patrick Hagarty joined Metrolinx in 1989 as a Transit Safety Officer. After holding several other positions, in 1996 he became a supervisor in Station Operations at Union Station. In 2000 he was promoted to superintendent and held that position until he assumed the newly created position of Assistant Manager Maintenance. In 2014 he became Manager, Station Operations Central, which was reclassified as Senior Manager Central Operations in 2017. He testified that Central Operations was responsible for the Union Railway Station and GO Bus Terminal as well as peripheral areas, including all customer services in those areas. He said, “We sell tickets, provide information, fix and maintain buildings, consult with stakeholders and manage the whole customer experience”. [88] Mr. Hagarty testified that in his capacity as Superintendent in 2008, he was part of a team. He often filled in for the manager and directly supervised supervisory staff. A Customer Service Officer and two payroll employees directly reported to him. He testified that at the time SAs reported to supervisors, who reported to the Manager. As Superintendent he was between the manager and the supervisors. [89] Asked to describe the duties of a SA around 2008, Mr. Hagarty testified that Union Station covers an area the size of seven footballs fields. It serves 90% of the total customers who use the system, approximately 250,000 customers a day. In 2008 SAs worked in an office area in the main York concourse, which included 10 glass booths. Two such booths were also located at the GO bus terminal, and later one 32 more was added at York West. He said that SAs are assigned a booth, and they work in the booth selling tickets and collecting revenue. They also answer customer questions as all Metrolinx staff do. He estimated that in a day a SA would do over 300 transactions. During rush hours all 10 booths are normally staffed. He testified that now there are more customers than in 2008, but some self-service terminals have also been installed. Yet, it is still very busy and sometimes snake lines form. [90] Mr. Hagarty testified that SAs get a lunch break, and half an hour at the end of the shift to do paperwork. Other than that they are in the booth, which he said would be 90% or more of the shift, because selling was their primary function. They work outside the booth only in very rare situations such as all departure boards going down. Then some SAs as well as office employees maybe pulled from their regular work to give information and directions to customers. [91] Counsel asked Mr. Hagarty whether SAs selling in the booth provide any customer service also. He said that they do, by answering questions such as how to use the ticket they purchased, and where to go next. Asked whether SAs do safety checks or respond to medical emergencies, Mr. Hagarty said they do not do safety checks. However, if a SA is right there when the medical emergency happens, he/she would assist just like any other employee would. Asked whether SAs would ever sell tickets outside the booth, Mr. Hagarty recalled a rare occasion, when the line-up became so uncontrollable, some SAs were provided pouches to go out and sell to customers lined up. [92] Mr. Hagarty testified that the GO Bus Terminal at Union Station opened in 2003, and was the first to hire CCCs. He said that two CCCs were hired in 2005, “to be an extension of the supervisors, to make decisions like putting extra buses, and to deal with escalated issues if a supervisor was not on site”. An escalated issue may involve staff like bus drivers, but if it is a discipline issue it would be sent to a supervisor. Subsequently, Station Operations decided that CCCs would be useful for that division also and several CCCs were hired. Now there are 18 CCCs at 33 the bus terminal. They have no supervisory type duties or issues to deal with, they go out to the line ups and platforms and help customers. [93] Mr. Hagarty testified that CCCs in Station Operations, deal with escalated issues and are out on the floor answering questions, but the main reason for employing them, however, was the need to direct people around closures due to construction. He said that CCCs have never sold anything and still do not. Nor do they work in a booth. The only time a CCC may go into a booth would be to coach or to speak to a SA. [94] Mr. Hagarty testified that prior to 2005 supervisors made decisions on adding extra buses or routes. That is now done by CCCs at the bus terminal. At the Union Station CCCs have construction related duties. If a routecustomers regularly use is closed due to construction, they have difficulty getting to the platform to board trains. CCCs are therefore on the floor with customers to deal with that. CCCs are also involved in planning track changes. He said that SAs are not involved with any of the above. CCCs also assist customers with mobility needs. At Union SAs do not do that, although there can be rare exceptions. Mr. Hagarty said that he has never sent a SA to do mobility assistance. The only way a SA assisted customers with mobility issues was, by offering a party ticket to someone travelling with the customer, which they were authorized to do at one time. [95] Mr. Hagarty said that CCCs are often a conduit between staff and managers for communication of information. CCCs communicate information from staff, including SAs, to supervisors and the control centre, and relay information from them to staff. If there is a major service disruption, for example a main track blocked due to a fatality during rush hour, one of the five CCCs working on the floor is reassigned to the control room. From the control room that CCC keeps in contact with other CCCs and supervisors to arrange for additional staff needed to bring customers to an alternate platform. He said that previously it was a supervisor who went to the control room in these circumstances, but for many 34 years now CCCs have been doing this. Mr. Hagarty testified that CCCs are involved in service changes like adding extra train or bus services and seasonal changes like service to Niagara Falls. CCCs predominantly handle the negotiations with printers to create new schedules, and ensure that old schedules are taken out of circulation and replaced. CCCs also ensure that SAs have all supplies needed at their booths. They also work with the Metrolinx Marketing Department. Mr. Hagarty said that SAs are not in anyway involved in this work. [96] Mr. Hagarty testified that any Metrolinx employee can receive customer complaints. However, because CCCs are out on the floor they get more complaints than anyone else. CCCs also deal with complaints escalated by SAs, which allows SAs to continue with their selling. CCCs are able to resolve disputes more efficiently and faster because they have a higher level of authority, the same authority as supervisors. Mr. Hagarty testified that while CCCs have no authority to discipline SAs, they provide coaching and guidance to SAs. Management decides on topics, which are covered at face to face coaching sessions CCCs have with individual SAs. [97] When major events take place, as it happens frequently at Rogers Centre and the ACC, and when major service disruptions take place, CCC stay at night to do reports setting out what happened, why it happened, what worked well and what issues arose and why. He testified that SAs do not do any reports. At most they may send an email to say “this happened”. He said that CCCs do various reports for him. He mentioned a report a CCC did on engineering measurements. He said that if a supervisor is absent, a CCC is assigned to fill-in for the supervisor. [98] Mr. Hagarty testified that a Customer Service Officer (“CSO”) and an assistant CSO were part of his group. At one time, they walked the floor and reported any issues and dealt with escalated customer complaints, but not in the same way as CCCs did. Then, as Superintendent, he took the CSOs off the floor, and had them drafting all communications to staff, which he finalized and sent out. He also had the CSOs do an audit of the Union Station to identify issues like missing signage 35 boards. He testified that CSOs did not coach or provide guidance to SAs in the way CCCs did, but would help if a SA asks a question. He said that CSOs did not do any selling. [99] Mr. Hagarty was shown a job posting dated April 23, 2008 for two CCC positions at Union Station. He confirmed that it is consistent with what CCCs in his group did in 2008, and that the hiring of those two CCCs did not result in the reduction of the number of SAs. Counsel pointed out that the CCC posting requires applicants to have a valid class “G” drivers licence and asked whether SAs had that requirement. Mr. Hagarty said he did not know, and added that at Union Station there was no driving involved. [100] When shown the job description for CCC Bus Operations, Mr. Hagarty said that he had not worked in Bus Operations, but had a general understanding of what CCCs did there. He reviewed the content under the titles, Position Mission, Position Mandate and Position Roles, and confirmed that they appear to be accurate. Asked to comment on the statement that ability to obtain a “B” class drivers licence with “Z” endorsement is an asset to be a CCC, Mr. Hagarty said that it is the same even for higher management staff, and that he assumes it has to do with being able to move a bus if required. [101] Employer counsel reviewed with Mr. Hagarty the “Job Synopsis” section of the CCC position Station Operations Central, in the CCC Desk Procedures updated 2016. It sets out duties and responsibilities under titles marked A to T with numerous bullets under each. Mr. Hagarty testified that those accurately reflect what CCCs at Union Station did in 2008, except that in several areas he commented that CCCs did “more than that”. [102] In cross-examination, Mr. Hagarty stated that no SAs directly reported to him when he was Superintendent Station Operations. He reported to the Manager Station Operations Central, and was responsible for the “office side”, including the budget. SAs reported to supervisors, who reported to the manager as he did. 36 However, during his employment as a Supervisor 1996 to 2000, SAs reported directly to him. He had never worked as a SA or CCC, but as Assistant Manager Maintenance from 2012 to 2014, he worked closely with CCCs. [103] Counsel put to Mr. Hagarty a job description for the union position of Agency Officer (“AO”) Station Operations West. He stated that the AO was in the West End, and reported to his counterpart there, and he did not know what the AO did. Counsel pointed out that the job description has been signed off by the ATU and certified as accurate. Counsel put to him that he has no reason to doubt its accuracy. He agreed. Union counsel referred Mr. Hagarty to the Customer Service Officer (“CSO”) job description. He agreed that the job description was also accurate. [104] Counsel put to Mr. Hagarty that after 2008 SAs assisted customers with way finding. He replied that SAs and many other positions, and even some members of the public, did that if asked. He agreed that customers were always able to ask questions from a SA at the booth. Asked whether there was a specific location where customer could get information, he said that “way back” there was an information booth, which he believed was staffed by SAs. Other than that attempts were made at that time to have the CSO out in the concourse as much as possible, specially during rush hour. [105] Mr. Hagarty agreed that his testimony that SAs spend 90% of their time in the booth is an estimate, and not based on any study. He agreed also that, therefore, for 90% of their time SAs are available in the booth to answer any questions if customers ask at. [106] Mr. Hagarty agreed that it is entirely possible that prior to the arrival of CCCs in 2008, at times SAs worked outside the booth assisting to manage the snake line. He said that bus drivers as well as other staff also did that. He said that it is possible that before CCCs were hired, SAs were assigned work outside the booth during special events like the Pope’s visit to Toronto. He said that in those 37 situations anyone could be asked to assist with the crowd. Mr. Hagarty agreed that the Student Information Desk set up every year for a few weeks was staffed by a SA, but for a few years now, it has been done by CCCs. He agreed that a SA also works a shift at the Lost and Found located next to the sales booths. [107] Union counsel asked Mr. Hagarty to state whether duties listed in the synopsis section of the CCC Desk Procedures Manual are accurate as of 2016, and back in 2008. He responded that the vast majority of the duties are. Others he said were accurate as of 2016, but he did not know about 2008. Counsel put to him that the manual indicates that as of 2016 CCCs were assigned to cover one of 6 areas of the floor on permanent or rotating shifts, based on a fixed daily schedule. Mr. Hagarty agreed, and said that management wants to ensure that all CCCs would not be out in the same area. However, he disagreed that any CCC is hired to work in a particular area on a permanent basis. He agreed that on reporting to work the CCC would go to his/her assigned area and answer questions, provide information, assist with way finding and do passenger assists. Counsel suggested that CCCs spend 6½ hours of the shift doing those duties on the floor. He said that he is not sure about the exact hours, but said it could vary depending on the day. However, management definitely wants them to be out on the floor as much as possible. [108] Counsel put to Mr. Hagarty that SAs sometimes accompany customers to the location at Union Station where they want to go. Mr. Hagarty replied that since SAs are in a booth there is little opportunity for SAs to do that and that at Union Station that would be very rare. He testified that before CCCs were hired, on Friday nights, Thanksgiving etc. SAs may have helped with way finding. However, since they work in booths, they were a last resort. Mr. Hagarty agreed that in stations outside Union Station, SAs spend more time outside the booth, and way finding was mostly done by SAs, but insisted that selling was still their primary function. 38 [109] Mr. Hagarty testified that at Union Station it was also very rare for SAs to do special assists because they work in a booth. Before CCCs arrived, SAs were instead given more authority to issue free tickets to individuals accompanying people needing special assistance. He agreed that in stations outside Union Station, SAs did special assists if they were willing. However, many SAs refused to do special assists, and instead offered free tickets to bring someone to assist. [110] Union counsel asked Mr. Hagarty whether he agrees that in 2008 CCCs spent the majority of their time on the floor. He replied that management tried to have them on the floor when the first CCCs were hired in Station Operations, but now they spend more time on the floor since there are 18 CCCs. [111] Mr. Hagarty agreed that outside Union, SAs open and close stations, keep a log of what was going on at the station, and report any incidents they observe. When counsel suggested that they respond to medical emergencies, he agreed they did that because there was no other staff there to help. At Union Station in the event of a medical emergency SAs would call a supervisor, and anyone present try to assist until help arrives. [112] Counsel suggested that CCCs now do many things which SAs did prior to 2016. Mr. Hagarty replied that CCCs answer customer questions like everyone else. Counsel suggested that a SA, at Union Station or outside, who thinks there is a need for an additional bus can request for one. Mr. Hagarty replied that there is no one designated to make such requests. A bus driver or even a head office employee waiting to board a bus may do that. Mr. Hagarty testified that if a customer has the wrong amount in his Presto card, he could go to a SA at the booth. SAs are encouraged to settle such issues if they can. If they cannot, it will be escalated to CCCs who have no dollar limit on what they can settle. [113] Union counsel suggested that in the past CCCs issued daily, monthly and yearly reports on credit vouchers issued, but now that information is entered directly into the computer by SAs, and the computer generates reports. Mr. Hagarty replied 39 that he did not know, but it was possible. He agreed that SAs issue credit vouchers, but their ability is limited because they can access the Presto card history only for a limited period. If there is a need to access further back into the Presto history, it has to be escalated to CCCs who have greater access to Presto history. He agreed that SAs do basic transactions like refunds and exchange of tickets. [114] Union counsel put to Mr. Hagarty that CCCs do not give directions to SAs. He disagreed and said that they are involved in coaching SAs. Asked whether he had personally witnessed CCCs coaching SAs, he said that he sees CCCs speak with SAs at their booths, but he cannot say whether they were coaching or not. However, he said that he knows that CCCs coach, from discussions he has had even recently. [115] Counsel suggested that when SAs assist and provide information to other SAs that is “coaching”. Mr. Hagarty disagreed, and said that all staff, bargaining unit and others, all assist and provide information to each other as needed. That is not coaching. He said that when a SA is asked to shadow a more experienced SA, that is not coaching either. [116] Mr. Hagarty agreed with counsel that Plant Services Staff and Transit Services Officers deal with crowd control, but added that they are not the only ones doing that. He agreed that SAs deal with Moneris, the electronic payment system, and may contact Moneris staff directly if there are issues, and said that supervisors also do that. [117] Mr. Hagarty testified that CCCs put up “wet floor” signs if they see a slippery floor, and call a supervisor, plant services or others to report it. He agreed that outside Union Station SAs may also do that since they are the only ones there. He agreed that before CCCs came, SAs and supervisors did that at Union also. He testified that setting up information tables for students or special events is now done by Plant Services and that sometimes CCCs and SAs get involved in that, and that 40 in the past it was done by Plant Services and SAs. He agreed that once set up, SAs used to staff the tables, and that SAs staff these tables occasionally even after CCCs were hired. [118] Mr. Hagarty identified the bargaining unit position description for Agency Officer, and testified that the Agency Officer was the go-between supervisors and all agencies. He reviewed the Mission, Mandate and the Roles of the position set out, and agreed that those duties previously done by the Agency Officer are now done by CCCs. [119] In re-direct, Mr. Hagarty affirmed that the Lost and Found Office at Union Station is primarily staffed by SAs. Asked whether SAs are ever assigned to specific areas for floor coverage, he said “no”, and added that SAs are not on the floor, except in rare situations when they may be pulled out of the booth. [120] Ms. Michelle McNeil started in May 2004 as a SA Floater in the Eastern Region Station Operations. She then worked as a part-time SA at the Pickering Station, and from there to the Oshawa Station, before becoming a SA floater at Union Station in 2007, and a CCC in 2009. She held the CCC position until 2013 before becoming a supervisor in 2016, at Union. In July 2016 she was appointed as Assistant Manager East Region. [121] Ms. McNeil testified that as Assistant Manager she reported to the Senior Manager Station Operations East Region. Reporting to her directly were Customer Service Supervisors, and CCCs. SAs reported to Customer Service Supervisors. There are 34 stations in the East Region, which employs 6 Customer Service Supervisors, 5 Facilities Supervisors, 6 CCCs and 135 SAs. Ms. McNeil and all supervisors worked out of the Station Operations East Region Head Office in Scarborough, Ontario. [122] Employer counsel asked Ms. McNeil to describe the work she did as a SA in the East Region. She listed the following: selling tickets and monthly passes for trains 41 and buses, providing customers information about services offered by Metrolinx and regional transit partners, making announcements over the PA system, providing first aid, issuing credit vouchers, depositing the daily revenue collection and ensuring that the cash floats are in order. She said that the SA who starts first in the morning opens the station, does a security check by walking around the station property, and reports to the Control Centre any issues observed like slippery platforms or debris on the rail tracks. She added that any employee observing any issue at any time is expected to report it. [123] Ms. McNeil testified that except when doing security checks or balancing at the end of a shift, SAs worked in a ticket booth. She estimated that a SA spends “95% or probably even more” of the shift in the booth. She said that the Floater SA was on standby at the Guildwood Station. If a SA at any of the stations book off work, the supervisor sends the floater to fill in for the absent SA. [124] Ms. McNeil testified that after Presto was implemented, SAs continued to do the same duties as before. The only change was in the type of fare they sold, and customers were able to load their Presto cards online or at Presto machines if they want. Counsel asked whether the amount of the time SAs spend in the booth changed after Presto. She said that sometimes during peak times SAs leave the booth to teach customers how to load their Presto cards at the machines. Asked what customer service was provided by SAs, Ms. McNeil said that they advise about things like schedule changes, best option to get the cheapest travel, and regional connections. SAs also make PA announcements about service disruptions and updates on serviced recovery. Ms. McNeil testified that more recently ten ride and monthly passes were discontinued, but SAs still sell paper tickets. They set up senior and student discounts on Presto cards, but they mostly perform the same duties as before. [125] Asked what she did as a CCC at Union Station, Ms. McNeil said, “we were responsible to deal with service disruptions. We coordinate with the Control Centre to minimize crowds during disruptions. If we have buses available, we get 42 them. We tell the Control Centre to arrange services from TTC or other transit agencies. We provide reports on what the issues were and the impact the service disruption had on customers. Working with Rail Operations, we pre-plan platform changes when construction is coming up. There are 27 platforms at Union, and when platforms are changed there is confusion, and there can be safety issues. When there is major construction it takes 6 to 8 weeks to plan by liaising with Rail Operations, Transit Safety, Customer Care and Communication. The changes must be announced ahead of time and we must ensure that changes are made only if needed. Still it takes several weeks before we are able to bring customers to the right platform to board their train. Sometimes even crews pull into the wrong platform and delays result”. During construction she also worked with external stakeholders and made recommendations on temporary signage required during construction, for example about closure of stairwells. [126] Ms. McNeil testified that when large events like the Pan Am Games take place CCCs are involved in those. During Rail Safety Week, they went out to the stations. She mentioned that “this week” CCCs visited stations in the Barrie corridor with Fire Dept. personnel to bring awareness to mental health issues in a campaign to prevent people committing suicide by jumping in front of trains. [127] Ms. McNeil testified that CCCs attend various meetings. CCCs know customer habits best because they are always on the floor. They attend meetings and make recommendations on the best wording and pictorials for signage and plan platform changes. They have input into communications that go out to customers and create schedules when platform changes are made. They also attend meetings when special events are held on Metrolinx properties. [128] Ms. McNeil testified that CCCs conduct face to face coaching and mentoring with SAs. She attends meetings with senior managers, assistant manager of facilities, all supervisors and CCCs, and as a team discuss the impact of upcoming changes and decide on topics. They could be topics on safety or customer service and could have a training component. In addition to scheduled face to face sessions, 43 there could be ad hoc sessions about a particular station, or when particular SAs need to be updated. Ad hoc face to face meetings are sometimes attended by supervisors. [129] Employer counsel asked Ms. McNeil what work performed by SAs and CCCs was similar or different during the period she was a CCC. She replied that the information provided to customers relating to their travel questions was similar for SAs, CCCs and everyone else. She said that first aid was also similar, although at Union Station SAs would seldom provide first aid to customers. It is done by CCCs or Transit Safety Officers. Outside Union Station, whoever happens to be on site - SAs, CCCs, Transit Safety Officers or Supervisors – respond and write Incident Reports. [130] Employer counsel asked what the “big differences” were between what SAs and CCCs did. She replied, that CCCs did “planning, the signage recommendations, platform changes. They attend meetings with internal and external stakeholders, planned where devices will be placed, dealt with the construction office about the impact on platforms. They do various reports. CCCs do service recovery reports, and are also involved in Customer Input Tracking Reports, which record feed back received from customers about any subject from signage, way finding, safety concerns or discourteous staff. CCCs or supervisors on duty at the time investigate those and answer back to the customer within 24 hours. Ms. McNeil testified that CCCs may show customers how to use vending machines, but they do no selling or revenue collection at all. [131] Ms. McNeil testified that as a CCC she has worked in the bus part of Union Station, but that was before Station Operations took over the bus operation. Asked what a CCC in the bus terminal did when she was a CCC, she said they guided customers to the correct bus platform, assisted hearing/visual impaired or wheelchair customers. If a customer needed special assistance, the CCC will look for a way to help the person board the bus, or the Customer Service office will be informed. During rail disruptions, CCCs ensure there are enough buses 44 by coordinating with GO Central Control, and ensure that customers board the correct bus. CCCs organize the crowd at the bus terminal during train disruptions. If the last departure train is cancelled, again CCCs ensure there are enough buses but do not decide which bus goes where. That is done by Bus Control Operations. She testified that when Station Operations took over buses, the CCC role changed. [132] Ms. McNeil testified that CCCs were first appointed outside Union Station in 2010. Asked what a CCC’s role is in relation to Agencies, she said that in the East Region there are 7 agencies, and that the number of agencies is decreasing. The Agencies are third party vendors selling fare and collecting revenue on behalf of Metrolinx and there is a need to manage agencies. Each CCC is assigned an agency (except one CCC had two) to manage the sales and revenue collection, overages and shortages. Shortages must be paid by the agency. The CCCs advise and coach agencies about any changes, ensure that they have all supplies and schedules, and address any customer complaints about agency employees. CCCs make sure that agencies become aware of service disruptions that can impact them and about any construction issues. Ms. McNeil testified that to her knowledge the Agency Officer position no longer exists. A Supervisor in the East Region is designated as responsible for the agencies. However, it is the CCCs who go out to the agencies assigned to train, communicate information, check and document overages and shortages and deal with customer complaints. If an agency disputes a shortage, the CCC and a supervisor attend a meeting with the agency to resolve that. [133] Counsel asked Ms. McNeil to identify duties in the Agency Officer Job Description which are done/not done by CCCs now. She said that CCCs liaise with Revenue Accounting in relation to shortages/overages issues, but do not liaise with Realty Services regarding agency contracts. CCCs inspect Agency facilities and make recommendations on corrective action or termination of agencies if GO standards are, not met. They have input into capital improvement projects and make regular suggestions on maintaining agency facilities in a state of good repair. They 45 establish and monitor ticket sales and reporting functions of agencies. They monitor and assess performance of new agents on their ability to provide fast, accurate and courteous service. CCCs do not interview prospective agents for suitability, do not negotiate or liaise with agents about ticket agent agreements, do not set up Chubb Security and do not recommend new agency locations. She testified that the number of agencies has been shrinking and CCCs now spend less time on Agency duties. [134] Ms. McNeil testified that CCCs outside Union Station have some duties not performed by CCCs at Union Station. Their work schedules rotate on a bi-weekly basis, and are changed as needed. They attend when events planned with internal/external stakeholders take place on Metrolinx sites. When companies request permission to attend at stations, for example, Yoplait to hand out free yogurt to customers, CCCs attend to ensure that the passenger flow or safety is not compromised. They do the same when politicians attend at Metrolinx sites to campaign. [135] Ms. McNeil testified that when a train service disruption occurs, CCCs drive GO vehicles to attend the site of the disruption and assist GO control staff to arrange for buses to transport passengers to the next station bypassing the disrupted area. Sometimes TTC or other transit services would be asked to do that. Then there can be confusion. CCCs assist customers in such situations. [136] When customer complaints are received, CCCs go out to the station in question. They investigate, take pictures, write reports and make recommendations on what steps, if any, should be taken. For example, if the complaint is that the customer had been overpaying for many days, the CCC investigates and reconciles the individual’s account and advise the SA or the Control Centre to settle the complaint. In speaking to the SA, the CCC may coach and provide guidance. If there is a potential discipline issue, the CCC escalates that to a supervisor. 46 [137] Ms. McNeil testified that the Eastern Region has a number of vehicles, including 3 accessible vehicles. Each day a vehicle is assigned for use by CCCs. During service disruptions or if a customer misses the last train, CCCs assist by transporting customers in these vehicles to their homes. [138] Ms. McNeil stated that CCCs are based in the Eastern Region Office and go out to the stations in accordance with the schedule. A CCC is assigned to prepare the schedule for the week, which is checked by her and senior management before release. The 34 stations in the East are not staffed by a CCC. [139] Ms. McNeil testified that often customers go to SAs at the booth about Presto issues, most frequently about being overcharged. If the error is limited to the ten most recent transactions the SA is able to resolve the issue on the spot by looking at the history to verify the error and issuing a credit voucher for the amount of the overcharge, which can be loaded on to the customer’s presto card. However, if the error goes further back in time than the last 10 transactions, the SA has to escalate it to a CCC. If the CCC confirms the error after investigating, the amount of overcharge is documented. The customer can take that to any SA or contact the Control Centre to have the amount loaded on to the Presto card. [140] Asked what other meetings are attended by CCCs, Ms. McNeil said when new devices, practices or initiatives are to be rolled out, CCCs attend planning meetings, so that they have input on how those would impact on the sites, customers and staff in the Eastern Region. It also enables CCCs to communicate information to SAs, such as the functionality of a new device or PA system. Similarly, when signage is changed in the Eastern Region, a CCC was given responsibility for that. CCCs also attend construction meetings to become aware of how construction can impact the Eastern Region. These are discussed with SAs during face to face meetings. CCCs also attend meetings with external people. She said that “last month”, a CCC attended meetings with various fire chiefs in preparing a special event organized by the Fire Department. She said 47 that with a supervisor, she attends quarterly meetings of the Durham Transit Bus Operations management. Sometimes, a CCC also attends those. [141] Ms. McNeil testified that people sometimes park illegally on the grass or blocking accessible parking. Others pick up and drop off passengers at the front, instead of the “Kiss and Ride”. CCCs would direct them to follow the rules, and if necessary, escalate violations to Transit Safety, who tag vehicles or have them towed. [142] Ms. McNeil testified that if the SA responsible for opening the station does not show up, the supervisor sends a floater SA to do that if one is available. If not, a CCC goes and opens the station and directs customers to buy tickets from machines until a SA is available. In the alternative, the CCC can authorize customers to board trains without tickets until someone arrives to sell tickets, and inform Transit Control that there will be people with no tickets boarding from that station. She said that even in those circumstances CCCs do not sell tickets. [143] Ms. McNeil was shown a CCC job posting from 2008, and the current SA job description, and asked whether they accurately reflect CCC and SA duties performed back in 2008 and/or currently. She testified that except for a few minor variances they accurately reflect duties performed by the two classification then and now. She testified that in 2009, when she became a CCC at Union, there was no daily floor plan for CCC work. However, such a plan had been put in place when she returned from maternity leave in 2011. She said that the change was made to ensure that instead of all CCCs being in one area, they would cover throughout the large Union Station every day. [144] In cross-examination, Ms. McNeil said that there was no Presto when she was a SA. At the time she became a CCC, Presto was being piloted at a few stations outside Union. While she was on maternity leave Metrolinx began to rollout Presto to all stations. By the time she returned to work the roll out was complete. Anyone who had old 10 ride paper tickets had to bring them to a SA. CCCs also directed 48 customers to go to a SA, who would either take the tickets and refund the money or apply the value to a Presto card. Only SAs were able to do that. [145] Ms. McNeil said that as of 2008 tables set up for special promotions, such as student discounts every September, and customer appreciation day several times a year, were staffed by SAs who otherwise worked in the booths. At the student table, SAs sold Presto at concession rates for students. Appreciation days were essentially to thank customers. While floaters and some SAs worked in the booths, she, other senior management, supervisors, CCCs and some SAs were at the table shaking hands, thanking customers and inviting them to have tea, coffee or a beverage. She did not know when this practice started. [146] Ms. McNeil testified that as a CCC she was on her feet about 90% of the time in areas visible to customers. During her pregnancy, she tried to keep in shape by walking a lot at work. Then at some point being on her feet all day became difficult. She therefore spent a lot of time in the office writing the CCC Desk Procedures Manual. She no longer responded to medical emergencies and did not push wheelchairs. At some point she also sat at a table and spoke to customers about Presto. [147] Ms. McNeil testified that on her return from maternity leave she spent less than 90% of time on her feet. She continued writing the manual and attended various meetings related to construction and signage, which she said was a big part of her role as a CCC at the time. Temporary signage was a constant need due to on-going construction and resulting stairwell and corridor closures and platform changes. At times when signs were not ready, she personally made signs. At the time Ms. McNeil went on maternity leave in August 2010 the CCC complement at Union Station was 6. On her return it had increased to 11 and increased gradually to 18. [148] In cross-examination, Ms. McNeil was asked whether all CCCs spent 90% of time on their feet as she did. She said that the CCC job was “about being out, assisting 49 and providing information to customers”. Some CCCs were on their feet more than others depending on their assignments. A CCC on a special project may be standing less. She said that by 2009 CCCs spent more time on their feet than she did. [149] Under questioning, Ms. McNeil agreed that she attended construction meetings because of special projects she was on. Sometimes other CCCs also attended these depending on the magnitude of the project. She agreed that she was definitely more involved in construction projects than other CCCs, and added that after 2010 construction projects increased, and have continued to increase. [150] Ms. McNeil testified that as a CCC it was part of her role to receive customer complaints about cashiers, as well as safety hazards. The CCCs settled complaints if possible. If not settled, complaints are escalated for investigation which may result in discipline. Ms. McNeil agreed that even as a SA, customers have made complaints to her about all sorts of issues. SAs try their best to resolve less serious issues like a train delay. They empathise, explain the reason for delay and inform when service would resume and suggest alternate ways of travelling. More serious issues, for example a very irate customer blocking the booth and preventing others from getting their tickets, are escalated to a CCC or supervisor. She said that it is much more difficult to resolve complaints on the spot in stations outside Union because there are no CCCs or supervisors on site, and SAs have limited authority to settle. She agreed that dealing with customer complaints is only a small part of the total CCC job. Ms. McNeil explained that a “CIT complaint” is one written or called in by a customer. Sometimes, customers ask CCCs to file a CIT complaint. If asked, a CCC must write the complaint to Customer Service Control, who puts it into the CIT system. She said that any CCC on duty in the region is required to deal with customer complaints and escalate those not resolved to CIT. She said that all her CCCs have a role in relation to signage. They go out and investigate signage issues, and provide input to the signage team on what needs to be done. 50 [151] Union counsel put to Ms. McNeil the CCC Duties and Responsibilities document, and asked whether CCCs perform any of the Revenue Accounting duties listed. She said they do, and explained their duties relating to SA shortages and overages. The Revenue Accounting Department sends to each supervisor a quarterly report with data on shortages/overages incurred by each SA. The CCC assigned that work uses that data to compare the SAs’ performance against the average shortages/overages for SAs, and identify recurring issues with particular SAs, so they could be coached, and if deemed necessary, sent for retraining. Sometimes, the CCC’s analysis leads to disciplinary action by the supervisor. Ms. McNeil said that prior to arrival of CCCs, supervisors did that work themselves. In relation to Agencies, she confirmed that CCCs coach and answer inquiries from agency employees, identify and explain relevant station operating notices, and receive and deliver supplies requested by agencies. She also confirmed that CCCs set up and coordinate approximately 35 information kiosks per year system wide, to educate university students, agencies and new GO users etc., as described in the document. Ms. McNeil testified that during her time as a CCC there were no face to face meetings held with SAs. However, by the time she went to the Eastern Region in 2016, it had started. [152] Ms. McNeil said that Incident Reports are a part of the Metrolinx philosophy, “see something say something”. They are done for medical emergencies, altercations, property damage, suspicious activity etc. Operational issues like service disruptions or shortage of buses are recorded in the station logbook. [153] Supervisors inform SAs by email or phone when “permission to enter” is given to an external organizations or politicians. That permission does not allow access to platforms. If such a person is observed at the platform, the SA is supposed to call a supervisor or CCC. If possible, she may tell the people that they are not allowed to be there. Once informed, the supervisor or CCC goes to the site. [154] Under questioning, Ms. McNeil testified that in 2009 when there were only 6 CCCs at Union Station, they were scheduled on split shifts. There was no structured 51 floor plan showing which area a CCC would cover. The CCCs discussed and agreed among themselves. Floor plans were implemented after more CCCs were hired. Then one CCC was designated as the “Point Person”, who worked in the busiest area during rush hours, then the Bay Concourse, and now the York Concourse. The Point Person is the contact person for the GO Transit Centre, Customer Contact Centre, Transit Safety. When contacted the point person dispatches CCCs as needed, for anything from a medical emergency, passenger assist or a service disruption. [155] Ms. McNeil testified that at Union Station there is a Customer Contact Centre. Customers come there to report issues like an elevator down or a lost person. She agreed that during rush periods customers also come to SAs to report lost persons. The SA would contact Transit Safety, who will make a PA announcement. She agreed that before CCCs, bargaining unit employees like Transit Safety Officers and bus drivers did crowd control at the bus terminal at Union Station. [156] Ms. McNeil agreed that the duties set out in the Agency Officer Job description, “Investigates customer inquiries, complaints, commendations and/or suggestions, determining an appropriate action to mitigate the circumstances, and provides responses as required”, and “maintains stock of all sales materials” are now performed by CCCs. [157] Ms. McNeil agreed that the Transit Safety Officer (“TSO”) is a union position, and that the job description is accurate. She agreed that prior to the arrival of CCCs, TSOs monitored and enforced parking rules and regulations at stations. She said that she does not know, but would not be surprised if TSOs sometimes dropped off passengers who had missed their last train at their homes. [158] Mr. Harry Zeritis joined Metrolinx in October 2011 as Manager of the Revenue Accounting Department, which was responsible for accounting and reconciliation of all cash that is sent to stations and all fare collected at stations by SAs and vending machines. Mr. Zeritis testified that until his arrival Ms. MG, a Project 52 Officer was acting as manager. When Mr. Zeritis became manager, MG returned to her position as PO, and retired in 2018. She had been the department’s only PO, and since her retirement there has been no PO. [159] Mr. Zeritis testified that when he took over, Ms. SR was the Supervisor of Revenue Accounting and some 18 to 20 Revenue Accounting Clerks reported to her. Around 2016 SR left Metrolinx. By then MG had returned to her PO position. Shortly before SR left, the supervision of Revenue Accounting clerks and the 3 Cash Inventory Clerks was shifted from SR to MG. MG became supervisor of the 18 to 20 Revenue Accounting Clerks, including authority to discipline and approve vacation. [160] Mr. Zeritis testified that from that time MG, (The PO) spent approximately 50% of her time on supervisory duties. And the rest preparing the department to deal with changes in the processes and devices taking place within Metrolinx. For example, as a result of the introduction of Presto, the data the department received, where data came from and how it came changed. That had system- wide impact. The PO therefore attended meetings of the Business Transformation Team (“BTT”). She noted the changes, and brought that information back and the department decided how to deal with the changes. [161] Mr. Zeritis testified that the PO never acted as the project manager. The Business Transformation Teams ran all projects. However, from time to time they sought assistance from the departments including the Revenue Accounting Department. The PO supported the team by providing that assistance. In addition the PO responded to ad hoc requests for information the department received from other departments, such as the number of transactions SAs at a particular station do in a day or week. The PO pulled data from the department’s system, and provided a report. The PO was also responsible to monitor what staff, including drivers and SAs, were doing. If something did not add up with an employee, the PO tried to assist the employee and also informed the supervisor. 53 [162] In cross-examination, Mr. Zeritis agreed that he is not able to testify about what the PO in the department did prior to his arrival in 2011. He said that since he became manager, the staff complement in the department has been constantly around 35, and that of those 22 were ATU members. Union counsel put to Mr. Zeritis that from 2011 until the supervision of clerks was moved from the supervisor to her, the PO spent 100% of her time on the Presto project. He disagreed and said that the PO had other projects as well, and cited the vending machine project as one. She attended meetings related to those projects also. Counsel asked what the PO actually did in relation to projects. Mr. Zeritis replied, “On any project, the project managers have a certain objective and are engaged in all kinds of activities. They ask for the business requirements from all departments. At meetings, PO noted the business requirements discussed by other departments. She brought that information to us and we discussed how all of that will impact us, and decided on the business requirements for our department. Once approved by myself and our enterprise people, the PO signed off on behalf of the department on our business requirements”. [163] Mr. Zeritis testified that once a project starts, its progress, issues and challenges are discussed at BTT meetings. The PO attended those, and based on information the PO brought back, the department decided what it needs to do. He said that some projects like Presto are very complex. It has over 300 data fields. Therefore decisions had to be made how to effectively implement the changes. The PO got input from everyone in the department, met with IT staff and others, and came up with suggestions on a timeline and what the department needs to do. Asked what else the PO did in relation to projects, Mr. Zeritis said that he could “go on forever”, but would give another example. He said that the BTT sometimes informs that their contractor has informed that what the department had wanted could not be done. Then the department has to decide whether to challenge that or whether it can do without what it wanted. The PO discusses that with him and other managers. [164] Ms. Heather Ann Niefer joined Metrolinx in 2014, and for the last 2 years has held the position of Manager of Fleet Services in the Bus Fleet and Facilities Division. 54 She said that her area oversees a fleet of trucks and other vehicles that do not carry passengers or collect fares, known as the “non-revenue fleet”, and is responsible for related policy and procedure, the continuous improvement program, and all contracts. Ms. Niefer testified that her area employed a Project Officer (“PO”) and a Senior Project Officer (“SPO”). The PO position has existed for 2-3 years. [165] Ms. Niefer testified that the PO job is very much focussed on policy and procedure. A major duty is to get the agreement of the Ministry of Transportation on audit procedures and the requirement for MTO under carriage inspections for the fleet. The department’s goal is to get MTO’s agreement for less frequent inspections. The PO also supports the development of policy and procedure. Ms. Niefer said that the PO basically developed the policy on installation of telematics (black boxes) on vehicles in the department’s fleet, and was also involved in the development of policies on stationing vehicles close to employee homes to enable quick response, and the zip car share program. The zip cars enabled employees to use short term rentals to travel around the city, eliminating the need to use fleet vehicles. She said that the PO also supported the SPO with the continuous improvement program, and exchange of data and information. Ms. Niefer said that “this summer”, the PO developed the policy and collected data to improve the program for the fleet’s use of the 407 toll highway. [166] In cross-examination, Ms. Niefer testified that the policy the PO wrote on black boxes set out who has access to information in black boxes installed in vehicles in the department’s fleet, and what that information is used for. [167] Ms. Anabella Leguia-O’Neill has been employed at Metrolinx for 29 years, the last 2 ½ years as Manager of Station Services and Standards. She testified that her section provides services relating to finance, analytics, signage, standards, projects and initiatives. Liaison services are offered between Station Operations areas and other business units, and her section represents Station Operations on various committees and projects. 55 [168] Ms. Leguia-O’Neill testified that her area employs a Project Officer (“PO”). The PO develops processes, looks for ways to increase efficiency and provides information to others on subjects such as fare technology like Presto, Ticket Vending machines, and develops standards. The PO has worked on initiatives such as signage intake efficiency and Presto monthly loyalty calculations. She is also on the working committee that handles all Presto software upgrades. She takes the information on changes to Presto functionality to the regions and provides advice. The PO has worked with the Network Operations Control Centre looking at efficiency of employee scheduling, particularly about where floaters are located and how they are used within the network. [169] Ms. Leguia-O’Neill testified that she did a monthly analysis on the PO where vending machines went down and for how long, and also used a program called “Infor” to review the efficiency of maintenance staff. She testified that a tool called “SICCOPS” estimated the amount of winter salt that would be required at stations based on weather conditions. The PO analysed the actual use of salt at each station. If staff at a particular station had been using too much salt, she contacts management and requests them to follow up. The PO also looks at ways stations can support Metrolinx’s initiatives to protect the environment, such as conversion to lead lighting, reducing energy use, and the proper handling of garbage at stations. [170] In cross-examination, Ms. Leguia-O’Neill testified that prior to assuming her present position, she worked as a lead at the Customer Contact Centre which receives all calls to GO from the public. She was in that position during the July 2015 Pan Am Games in Toronto. The PO at Station Service and Standards at the time was Ms. S. As lead at the Customer Care Centre, she had dealings with Ms. S, who was in charge of coordinating efforts to support the games, with the assistance of a summer student. Ms. S made sure that radios were placed in the right locations and are stored and used properly. She also was in charge of logistics – the scheduling and issuance of equipment like radios and projectors. She put together PANAM packages, and ensured that every volunteer receives a 56 package which included a schedule setting out the volunteers work locations and shifts. [171] Ms. Leguia-O’Neill testified that Ms. S was part of the committee on installation of Presto and other ticket vending machines. Her role relating to signage was to monitor, from the point of intake of orders for signage, their fabrication and installation. Her goal was to minimize the time taken for that process. In doing so, Ms. S worked with a team at IT to acquire software that allowed her to document information on the number of intakes received and the time taken at each step of the installation process. [172] Ms. S’s monthly loyalty work involved reviewing the list generated monthly by the Presto system setting out the Presto cards that need to be reimbursed and the tabulation of the amount of reimbursement on each card. She sent that information to the regions for follow up. The PO is also responsible to identify the root cause for Presto card issues customers experience. Ms. Leguia-O’Neill also provided some details on exactly what the PO did in relation to the location and scheduling of floaters, the usage of salt, and the protection of the environment. She emphasized that the PO’s goal always was to find efficiencies. [173] The employer’s final witness was Mr. Douglas Hodgson, Manager of Information and Information Technology, Field Support Services, since 2007 (“INIT”). INITs role was to ensure that all IT systems and services at all Metrolinx facilities, including railway stations, bus terminals, maintenance shops and offices operate as contemplated in the Design Requirements Manual. INIT employs some 30 staff who drive service trucks and maintain and repair systems, and specialists who install and oversee implementation of systems. For the last 7 years the latter group has included a Project Officer (“PO”). Mr. Hodgson testified that the INIT PO indirectly reports to the INIT Business Management Group (“BMG”), which does the tendering and the construction of all capital projects like railway stations and bus terminals. The BMG assigns the PO to their projects. When so assigned, the PO works directly with the Capital Projects Group. As examples of systems INIT installs and maintains, Mr. Hodgson mentioned Presto and ticket vending 57 machine systems, public address systems, CCTV systems, digital signage systems in railway stations, wi-fi systems on buses, and vehicle location systems on trains and buses. [174] Mr. Hodgson testified that there is also a Realty Services Department responsible for acquiring space for Metrolinx staff to work in, including renting building space or trailers for construction projects. He said that the INIT PO has the same role for the Realty Services Group, as with the Capital Projects Group. [175] Mr. Hodgson testified that a unique role of the PO relates to the Design Requirements Manual, which he said was “our bible”. The PO has to ensure that specifications for all INIT systems are kept updated and meet the needs of the facility. The manual dictates what systems are to be involved in any capital project or realty project. That information is provided to contractors who develop and install INIT systems. [176] Mr. Hodgson testified that the PO also makes presentations on the work done by INIT and its internal processes, and makes presentations to senior management on specific projects. Mr. Hodgson testified that the PO liaises with other units and writes internal reports and updates for him. When new systems have to be connected to existing networks, the PO has to ensure that data is protected by complying with INIT’s security standards. The PO does that through reviews and discussion with management and security teams. The PO also has to deal with any issues that may arise after the installation is completed. [177] Mr. Hodgson testified that the PO does not determine budgets. But for capital projects, as part of the design reviews done at various stage of the project, the PO estimates the cost for materials and contractors, and provides standards and recommendations. [178] Mr. Hodgson said that at the design and 25% stages, the PO also reviews charters for capital projects that require INIT services to decide what services should be included. After a project is completed the PO does a review to confirm that the 58 contractor had adhered to required standards. He also provides a report to Mr. Hodgson and senior management setting out “lessons learnt” from the project. [179] Mr. Hodgson testified that the PO, as a non-bargaining unit member, does a yearly performance management plan. Management sets goals and objectives for the PO to enhance his development, which could include training and certifications. The PO is rated and compensated accordingly and is awarded salary increases. Mr. Hodgson was not cross-examined. SUBMISSIONS Union Submissions [180] The union’s primary position was to the effect that based on its evidence and submissions on the scope of the bargaining unit, all seven positions in dispute ought to be bargaining unit positions. I have already rejected that argument. The union’s alternate argument, referred to as “the bargaining unit work argument” was that in any event, two of the positions the employer treats as excluded from the bargaining unit, namely CCC and PO, ought to be included, because they perform work similar to work performed by employees in bargaining unit positions. Union counsel conceded that if the Board rejects its scope arguments, which it has, the union is not asserting that the other five positions ought to be included on the basis of its alternate “bargaining unit work” argument. Therefore, in this part of the decision, the Board has only to consider whether the CCC and PO positions should be declared to be bargaining unit positions on the basis of the union’s bargaining unit work argument. [181] Union counsel commenced by reminding that this grievance is about the integrity of the union’s bargaining unit. He submitted that in this regard titles of positions are of no significance. The issue for the Board is whether the work in the CCC and PO positions “is similar or analogous” to work in bargaining unit positions, and this requires a detailed review of duties and responsibilities of those two positions in comparison with duties performed by bargaining unit employees. He submitted 59 that the evidence shows that the two positions essentially do the same work performed by union members in bargaining unit positions. He emphasized that the test is not whether the work is identical. It is enough if the evidence establishes that the work is “similar or analogous”. [182] Counsel argued that the evidence establishes that CCC’s work is similar or analogous to the work of SA. He said that both positions primarily have two functions, fare related duties and customer service duties. On the fare related duties, the only difference is that SAs physically sell tickets and other fare media to customers sitting at a booth. Prior to the arrival of CCCs, SAs did all duties related to fare, including instructing customers on how to use automatic ticket vending machines. Then there was a further move to get fare payment out of the booth and on to the floor, and Presto cards were introduced. He submitted that CCCs took over various duties related to Presto, including helping customers use Presto card and vending machines. Although CCCs do not sit at a booth selling fares and receiving cash payments as SAs do, all of the fare related duties they perform in relation to vending machines and Presto is “selling” in a more automated modern world. [183] Counsel submitted that both CCCs and SAs are Metrolinx’s frontline staff for customer service. Before CCCs, SAs spent a substantial portion of their shift on customer service, answering questions and dealing with problems the public bring to them. He said that it was not a de minimis duty, but a core function of the SA job. Now CCCs do the same function, the only difference being they do that not at a booth but on the floor. Counsel submitted that apart from where the work is done, the work itself is the same. [184] Counsel reviewed and compared the CCC and SA job descriptions, and pointed out that in addition to “selling”, SAs had customer service functions. The “Position Mission in the SA job description includes “To promote customer service and assist customers as required”. The position mandate includes “Providing information to the travelling public and handling of lost and found articles.” 60 Position roles includes “Enhancement of customer service and assist customers as required”. Counsel submitted that therefore, it is clear that customer service is a core part of the SA job. [185] Counsel referred to the employer’s particulars and submitted that in addition to customer service, fare related duties form a part of the CCC job. Under the title “Presto” they are said to “Investigate short loaded/overloaded cards on behalf of passengers,” “Assist SAs and customers with difficult Presto scenarios such as reading history to determine credit eligibility”, and “Calculate defective card loyalties on a monthly basis and reports are generated for the Customer Contact Group to handle customer loyalty issues”. He submitted that, like SAs, CCCs are involved in fare related duties such as assisting customers with fare vending machines and Presto related problems like failure to tap on/off and money not credited to the card. [186] Union counsel pointed out that the union called three SAs. Two of them had also worked as CCCs. He submitted that these witnesses were best placed to compare the jobs because they have actually done the jobs. He reviewed the testimony of each of the witnesses, which I have set out in detail in this decision. Counsel pointed out that Ms. Borrens testified that the work she did as CCC was the same as what she did as SA, other than the fact that as CCC she was on the floor and as SA at the booth. He also highlighted duties Ms. Borrens had done as SA, which he said were similar to what CCC’s did. He summed up that Ms. Borrens’ testimony was to the effect that the work she did in both positions was the same, other than that as a SA she was in a booth except when outside doing the “snake line”. Counsel conceded that Ms. Borrens agreed that she did not handle any cash or money as CCC, but submitted that was because she was on the floor as a CCC, where fare payment was done through Presto which did not involve handling of cash or money. [187] Counsel similarly reviewed the testimony of Ms. Barbita and Ms. Gnanaswaran, highlighting duties which in his view were performed by both CCCs and SAs. He 61 pointed out that like Ms. Borrens, they also told the Board that CCCs and SAs did the same work except that the former worked on the floor and the latter in a booth. Counsel also reviewed Ms. Barbita’s evidence about the duties performed by the Agency Officer in the Western Region. An Agency Officer is not employed any longer. Her evidence was that a CCC in the Western Region is now tasked with those duties. Counsel submitted that it is clear that the Agency Officer job is now given to a CCC. [188] Union counsel reviewed the testimony of employer witness, Mr. Hagarty. He pointed out that Mr. Hagarty had never worked as a SA or CCC. Nor has he directly supervised either position. Therefore, counsel suggested that Mr. Hagarty was not in as good a position to know what SAs or CCCs do, as the union witnesses who had actually done the jobs. [189] Union counsel submitted that the work done by POs is very similar to work done by PCs. Counsel relied on the testimony of Mr. Lehman, who had worked as a PC since 2009. He pointed out that Mr. Lehman had described the PC job to be “essentially a project manager job, overseeing projects from inception to completion.” He said that in doing that he liaised with internal and external groups, prepared project charters and tenders for consultants and contractors, and managed projects until completion. He gave examples of projects he managed, and said that a PO was part of a group he oversaw for over two years during the project to install vending machines at UP Express Stations. [190] Union counsel compared the position mission in the PO job description with the position mission in the PC job description. The former reads: - Under the direction of the Manager Strategic Planning or Sr. Project Engineer/Officer, to manage the provision of complex integrated technical projects involving consulting services and corporate resources, in an effective timely, consistent and cost effective manner, as required for excellence in customer service. The PC position mission reads: 62 - Under the supervision of the Senior Project Engineer/Officer, to coordinate the design and construction of assigned physical infrastructure projects, in a timely, consistent and cost effective manner. [191] Union counsel submitted that although one uses the word “manage” and the other “coordinate”, both mission statements are about managing projects. Mr. Lehman testified that that is what he did as a PC. He testified that he was not aware of a Manager Strategic Planning, and that both POs and PCs worked under a Senior Project Engineer/Officer. [192] Union counsel also referred to one of the position mandates set out in the PO job description which reads: - Managing complex projects through all stages of definition, procurement, and implementation adhering to technical and quality requirements, budget, schedule, and approvals. He compared that with the following in the PC job description: - Overseeing projects through all stages of design and construction in terms of function, quality, budget, schedule and approvals in co- ordination with external and internal authorities. Counsel submitted that while the former uses the word “managing” and the latter “overseeing”, both words mean the same. Those two position mandates are remarkably similar, and Mr. Lehman testified that the provision in the PO mandate is consistent with what he did as a PC. [193] Union counsel went on to compare a number of position roles in the two job descriptions. The PO job description contains the following roles: - Plans, forecasts, monitors and reports all capital project expenditures such as consultant fees, addenda construction contracts and change order’s. - Initiates, and prepares, the terms of agreement to procure technical consultant assignments, evaluates proposals, and recommends consultant assignments. The PC job description contains the following position roles: 63 - Plans, forecasts, monitors and reports all capital project expenditures such as consultant fees and addenda, purchase orders, construction contracts, change orders and cost sharing agreements with public or private organizations. - Initiates and prepares, the terms of agreement to procure technical consultant assignments, evaluates proposals, and recommends consultant assignments. Counsel submitted that the roles as described in the two job descriptions are nearly identical, and Mr. Lehman testified that what he did is consistent with the PO roles as described. [194] Union counsel submitted that the PO role; “Provides leadership to GO staff engaged in project co-ordination and implementation to compile requirements and business justification, obtain internal and external approvals, review and approve design proposals, coordinate internal and external implementation activities, ensure through acceptance and commissioning procedures, and resolve any ensuing disputes within established schedule and budget restrictions”, is very similar to the following roles in the PC job description read together: “Resolves disputes within established schedule and budget restrictions and that Mr. Lehman testified that PO do these duties at times depending on the project and the PC do these all the time.” [195] Union counsel made similar arguments comparing the following roles set out in the PO and PC job descriptions respectively: PO:- Plans, directs, coordinates and monitors the work of consultants, to ensure compliance with internal user group requirements and GO Transit standards, policies and procedures (such as procurement, IT/network standards, ITIL/change management procedures etc.), through all project stages including project studies, design proposals, design, reports, procurement, contact negotiation, development/configuration , and project implementation. PC:- Plans and oversees the work of consultants, to ensure compliance with GO Transit’s Engineering Standards, Building Code and Site Plan Control Requirements and internal user group requirements through all project stages, such as the preparation of environmental assessment documents, project studies, design proposals, design reports, sustainable 64 development reports, accessibility reports, contract specifications and drawings and construction administration. PO:- Represents GO Transit at meetings with other transit and government agencies PC:- Represents Metrolinx at meetings with other transit and government agencies, and Represents GO Transit at meetings with external agencies, municipal council committees and at public presentations or hearings. PO:- Initiates tenders, evaluates bids, and recommends for approval the award of project contracts. PC:- Initiates tenders, evaluates bids, and recommends for approval the award of project contracts, and prepares and submits tender document specifications for construction and consultant contracts for submission to Procurement and Contract Services for tendering. Assists Procurement and Contract Services during the tendering by providing information to contractors and consultants on questions arising during tendering. Participates in evaluating bids and recommending for approval the award of contracts. PO:- Ensures proper acceptance and commissioning of completed projects for hand over to owning business office and IT. PC:- Ensures proper acceptance and commissioning of completed projects for hand over to respective business unit and IT, and Ensures proper acceptance and commissioning of completed projects for hand over to the user group. PO:- Prepares performance evaluations of consultants and contractors and project past-evaluation reports. PC:- Conducts performance evaluations of consultants and contractors and prepares project post-evaluation reports, and Prepares performance evaluations for consultants and contractors and prepares project post-evaluation reports including project cost analysis. PO:- Defines, researches, and develops technical standards and procedures for improved physical infrastructure. PC:- Defines, researches, and develops technical standards and procedures or improved physical infrastructure and, Researches, develops and recommends Engineering Standards and procedures for improved physical infrastructure. 65 [196] Union counsel argued that the forgoing duties are not only similarly worded in the respective job descriptions. Mr. Lehman testified from personal knowledge that both POs and PCs do those duties. Counsel pointed out that Mr. Lehman was not able to testify whether POs did four of the roles set out in the PC job description. However, he referred to the PC role “Directs the management of consultants and cross-functional project teams engaged in ongoing projects”, and submitted that it is clear that the PC job is one of project management. All of the four duties Mr. Lehman did not testify about was about managing projects. [197] The employer had filed particulars with respect to duties and responsibilities of POs as of September 2017. It consisted of 61 paragraphs. Union counsel reviewed in detail Mr. Lehman’s testimony with respect to those particulars and submitted that it supports the other evidence that PC’s perform much of the duties performed by POs. [198] Union counsel pointed out that the employer did not adduce testimony from any PO. Its witnesses were managers and not in as good a position to testify about duties of POs. In contrast, Mr. Lehman has actually worked as a PC. For a substantial period, he also worked alongside a PO. Therefore, his evidence about work done by POs and PCs must be given substantial weight. Counsel submitted that many of the duties are described in near identical words in the two job descriptions. In others, although the wording is different it is the same duty. To the extent that there are differences, counsel suggested that it is likely because of the nature of the particular project. What is clear, he submitted, is that in both jobs the central theme is project management. Employer Submissions [199] Counsel submitted that the fundamental flaw in the union’s argument with regard to the CCC position is that it focuses on tasks. Since SAs as well as CCCs liaise with others, it argues that both jobs are the same. The union also uses generic terms like “customer service”, and argues that since both jobs provide customer service, they are similar jobs, and should be in the bargaining unit. Employer 66 counsel submitted that the proper question to ask is – “Are the core functions of the jobs the same”. The Board therefore has to examine the core functions of jobs being compared. [200] Counsel conceded that SAs provide an important customer service by selling fare, which is their core function. Even union witnesses referred to SAs as “sellers”. On the contrary, CCCs are not sellers at all. The uncontradicted evidence is that they do not ever sell anything. To the extent that there are some tasks that overlap between the two positions, that is incidental and insignificant. The core functions of the two positions are very different. [201] Counsel pointed out that Ms. Borrens agreed that during an 8 hour shift, she spends 6 ½ hours in a booth, doing over 300 transactions. She agreed that at Union Station it is always busy at the booths and that often snake lines of 100 plus form. While she does some customer service while selling fare at the booth, her evidence supports the employer’s position that SA is a sales job. In contrast, selling forms no part of the CCC job. [202] Ms. Barbita testified that the “Position Mission” for CCC, describes her “whole job” as a SA in a station outside Union. She testified to the effect that the SA and CCC jobs are interchangeable. However, the evidence is, and Ms. Barbita agreed, that outside of Union Station, SAs very rarely see a CCC. Thus Ms. Barbita would not be in a position to observe what CCCs do. Yet she was quick to make the broad assertion that CCC work is the same as what she did. Moreover, while making that assertion, Ms. Barbita agreed that SAs spend most of the shift in the booth selling, apart from ½ hour to open the safe, count the float, and ½ hour to balance at the end of the shift. She did not contradict Ms. Borrens’ evidence that for 6 ½ hours out of 8 hours a day SAs are in the booth selling fare. [203] Counsel submitted that Ms. Gnanaswaran was also very quick to adopt the union’s position. She testified that the duties of SAs and CCCs were “not identical but very close to identical”. In cross-examination, however, Ms. Gnanaswaran 67 agreed that a SAs main job was selling, but that if customers want help, SAs help. She agreed that other Metrolinx employees also help if asked, and that CCCs do not work in a booth, have no float and do not sell anything. Counsel submitted that Ms. Gnanaswaran appeared to be asserting, as the union does, that selling fare is a customer service, and therefore the core function of SAs is customer service and it is the same as the CCC job. [204] Counsel reviewed the “Position Missions” in the CCC Union Station job posting, which he said triggered the instant grievance, as well as a Job Description for CCC Bus Operations in effect at the time. He submitted that those have nothing to do with the core function of the SA position which is selling fare. He also pointed out CCC duties and responsibilities, which he said are not done by SAs. He asserted that the evidence is that the content of those documents was accurate then, and continues to be accurate today. The union is latching on to some tasks which both positions do and arguing that this brings the CCC position into the bargaining unit. [205] Employer counsel submitted that the union made the same flawed argument in comparing the PO position with the bargaining unit position of PC. It relied on generic term “Project” and particular tasks done by POs and PCs. The union’s position is that both are involved in projects and therefore, the jobs are the same. That argument must be rejected. “Project” is a very broad and generic term. He submitted that the evidence is that the types of projects managed by POs and PCs are fundamentally different. He pointed out that union witness, Mr. Lehman considered any undertaking with a start date and a completion date is a project. In his opinion even managing an undertaking to paint lines or purchase pencils would be projects because it is done from start to completion. [206] In reply, union counsel submitted that the Board’s task is to determine whether duties and responsibilities of the excluded PO positions are substantially similar to duties and responsibilities of bargaining unit employees. The employer has agreed that it is not allowed to simply change the title of a union job and exclude 68 it from the bargaining unit. Counsel submitted that the employer is also not allowed to take away bargaining unit work and assign that work to a new excluded position with a different title. If the work being performed by the new position is substantially similar to the work performed in the past by bargaining unit employees, that it is in the bargaining unit. Counsel submitted that a review of the CCC job posting will show that many of the duties described in it are within the core functions of the bargaining unit positions SA, Customer Service Officer and Agency Officer. [207] Counsel disagreed that SAs are primarily “sellers”, who incidentally provide customer service while selling. Their customer service role is not a minor part of their job, as is the case with other Metrolinx staff. SAs, like CCCs, are front line “go to” staff for the public needing information. It is not like a Metrolinx janitor or maintenance person who may provide information to customers if asked. Providing information is a core part of the SA job. [208] Union counsel submitted that with advancement of technology, selling now is also done by ways other than by someone sitting at a booth. While the old method of selling continues, when CCCs direct customers to Presto and vending machines and assists them to purchase fare, that is a new way of selling, and both CCCs and SAs do that. He submitted that helping customers and showing them how to use Presto and ticket vending machines is “a form of selling in the modern world”. [209] Counsel agreed that SAs are not trained and do not assist track crossings. However, he asserted that there is no evidence that it is a duty CCCs actually perform. While SAs do not do monthly calculations on defective accounts and prepare reports, they do similar work. They review accounts and investigate complaints about errors in customer accounts, and fix issues if possible. While SAs are not required to possess a drivers licence, there is no evidence that CCCs actually need a licence to perform their duties. 69 DECISION [210] I start by observing that in this grievance the union is not taking the position that the employer is prohibited by the collective agreement from assigning bargaining unit work to newly created non-bargaining unit positions. The union’s position is that the CCC and PO positions perform duties similar to those performed by existing bargaining unit positions, and are in reality the same positions, although with different position titles should have been added to the schedules referred to in the Recognition Clause. The employer also does not claim an unrestricted right to assign bargaining unit work to excluded positions it has created. It recognizes that depending on the nature and extent on such assignment, at some point the newly created positions may be drawn into the bargaining unit. The dispute is about the point at which it happens, and whether that point has been reached in the case of the CCC and PO positions. [211] Resolution of this dispute requires a quantitative, and as a quantitative analysis. The recognition clause as rectified is set out at para. 6. It describes the scope of the bargaining unit in terms of “employees” who are included, and certain persons, staff, students and employees, who are excluded. It does not include or exclude particular tasks or duties. While supervisory personnel are explicitly prohibited from performing bargaining unit work, (article 38.1) there is no such prohibition against other non-bargaining unit staff performing bargaining unit work. However, it is now settled law that even in the absence of explicit language, limitations on the extent to which non-bargaining unit employees may do bargaining unit work may be inferred from other provisions of the collective agreement, primarily seniority provisions. See, Re Irwin Toy Limited (1982) 6 L.A.C. (3d) 328 (Burkett); Re Scarborough (Borough) (1975) 10 L.A.C. (2d) 188 (Adams). The evidence is clear, and the employer did not dispute, that both CCCs and POs do some work that is also performed by bargaining unit employees. The question is whether the nature of that work, and the extent to which that work is performed by them is such as to bring them into the bargaining unit. That obviously depends on the evidence. 70 [212] The arbitral approach in dealing with this issue is summarized in Brown and Beatty, Canadian Labour Arbitration, (5th Edition) at 5.1440. The portions of that summary relevant for present purposes, (with footnotes omitted) are as follows: Arbitrators have followed a similar approach with respect to employees other than supervisory personnel who are excluded from the collective agreement. Employing a quantitative analysis, where the work is necessarily incidental, or where the work assigned was no more than 15 to 20% of the employer’s duties, it was held not to be sufficient to bring the assignee into the bargaining unit. . . . Conversely, if the assigned duties represented a substantial amount or greater proportion of his or her work, or took up one-third of the employee’s working hours, in excess of 50%, or 90%, of the employee’s time, the opposite conclusion was reached. However, in these circumstances arbitrators have also had regard to the quality and the nature of the work, as well as to the quantity assigned, in assessing the impact of the assignment upon the bargaining unit. For example, where the quantity of work performed was small and required a lesser skill content, an assignment from a maintenance unit to a production bargaining unit was held not to be contrary to the collective agreement. . . . These principles by which arbitrators test the propriety of an assignment of bargaining-unit work to non-unit personnel seem to prevail even where the assignment follows the establishment of a new classification outside the scope of the unit, and even when, coincidentally, it involves the transfer of an employee out of the unit. For example, where management is entitled to create a new classification outside the unit would seem to depend on whether the functions embraced by it can be said to be of the same type as those performed by excluded persons, or whether it is more similar in character to the duties performed by employees in the unit. The CCC position [213] In determining whether the CCC position ought to be included the bargaining unit, the evidence on the actual duties and responsibilities of the CCC position must be examined in comparison to those of the SA position. Union counsel’s position was to the effect that SAs had two equally important core functions, selling fare/ collecting revenue (hereinafter “selling”) and customer service. When asked to describe the SA job, Ms. Borrens replied that they provide customer service to all individuals who enter Union Station. She did not even mention “selling”. It was 71 only after union counsel prompted her by asking whether SAs are “involved in fare media”, that she testified that they sell tickets. Ms. Barbita did mention selling when asked the same question, but only towards the end of a list of other duties she recited. Customer service is explicitly included in the SA job description. I also agree that their customer service role is more significant than that of various other Metrolinx employees, who may occasionally provide information or directions to customers if requested. The evidence discloses a culture, if not an employer policy, that customer service is everyone’s responsibility. All staff, union or non-union, are expected to assist customers if possible. However, the evidence simply does not support the union’s position that customer service is a core function of a SA on equal footing with selling. No doubt, union witnesses adopted the union’s position. However the evidence, including the evidence of these same witnesses, contradicts that position. [214] The evidence, including that from union witnesses, is that SAs spend approximately 6 ½ hours out of 8 hours of work a day selling while sitting in a booth. While selling, they provide customer service by answering any questions asked, and may hand out material like train schedules. There is also evidence that occasionally a SA may help with the snake line-ups or show customers how to use Presto or ticket vending machines. Based on the evidence, I find that the SAs at Union Station rarely leave their selling at the booth to provide customer service on the floor. The bulk of their customer service consists of providing information while selling at the booth. The evidence is that it is always busy at the booths with customer line ups and that SAs very rarely have an opportunity to leave their assigned booth. The only way to conclude that customer service is a core function of a SA is to accept the idea that selling of fare and collecting revenue is by itself a customer service. That seemed to be the position of the union witnesses. They lumped the selling function along with the other customer service duties SAs do. If that is accepted, customer service will not only be the SAs’ core function, it would be their only function. In fact, the duties of all Metrolinx employees, bargaining unit or outside, are customer service duties to some extent, because everything is related to serving customers who use Metrolinx 72 Transportation services. However that does not assist the union in light of the recognition clause in the collective agreement. [215] The evidence is that in stations other than Union, SAs have more opportunity and provide more customer service. This is because if a customer needs any assistance, except on rare occasions, no one other than SAs is available. Also, unlike at Union Station, there are periods when stations are not busy. This allows SAs to do more customer service if she/he wanted to. [216] Nevertheless, the overwhelming evidence is that the primary function of a SA is selling and related duties like reconciling cash floats, balancing, issuing credit vouchers, refunds etc. The vast majority of their work time, at Union Station, and to a lesser extent outside, is consumed by their selling and fare related duties. In other words, the core function of the job, at Union Station as well as outside, is selling and fare related duties. It is therefore not surprising that even union witnesses referred to SAs as “sellers”. Under cross-examination, Ms. Barbita as well as Ms. Gnanaswaran agreed that SA’s “main job” was selling. Ms. Gnanaswaran testified that when snake lines form CCCs assist, but added that “sometimes” a SA may also put on a green vest and assist. She also testified that SAs do way finding and customer assists, but only at stations outside Union. [217] Most significant, all witnesses, union and employer, were unanimous that CCCs do not sell anything, not even to assist SAs during busy periods. The evidence is that CCCs do not work in a booth at any time. They spend most of the shift on the floor. Each workday they are assigned specific areas within Union Station to work in. Way finding, customer assists, and snake lines are a regular and integral part of the CCC job, unlike SAs, who if at all, may do those tasks occasionally. [218] Comparing the duties qualitatively, the evidence is that CCCs had more authority and responsibility even when performing duties, which SAs also do. SAs only have authority to issue refunds up to $50. CCCs have no such limit. SAs may issue credit vouchers exceeding $50, but only with approval by a supervisor. 73 CCCs do not need such approval. In dealing with Presto related issues, SAs have access only to transactions on Presto cards done within the most recent 3 months. CCCs have the same access supervisors have. SAs only handled basic revenue collection issues. CCCs did more complex revenue collection issues escalated by SAs to them and supervisors. [219] The enhanced authority CCCs have is supported by evidence of duties they perform, which SAs do not. CCCs coach SAs, and conduct scheduled face to face sessions to review topics determined at meetings with supervisors and managers. The union asserted that SAs also coach. However, the evidence in that regard amounted to nothing more than that SAs helped each other. This is not comparable to the coaching CCCs do, which is part of their job description. [220] The CCC job description also states that CCCs escalate SA performance issues to supervisors and managers. The union led evidence that SAs also can raise performance deficiencies of a fellow SA with management. However, one union witness referred to that as “ratting”, which would be done only as a last resort. It was also agreed that employees other than SAs or even customers can raise performance issues of SAs with supervisors. In contrast, it is part of the CCC job description. [221] The evidence is that one of the duties of a CCC at the bus terminal is to request for additional buses if needed to accommodate customers waiting. The union led evidence that SAs also have done that at times. However, the evidence again is that any Metrolinx employee, including an office employee waiting to board, is free to bring such issues to the attention of supervisors. The difference, however, is that unlike them, that is a duty CCC’s are expected to fulfill. [222] The CCCs also have a broader role in that they perform customer service duties at any station outside union as needed. A SA located at a particular station provides information, does customer assists, way finding etc. only at that station. CCCs in contrast are not located at a particular station. They are based at the 74 office in Scarborough, and travel to stations as needed in GO vehicles. SAs are not required to do any driving at work. A “G” drivers licence is a required qualification to be a CCC, and ability to obtain the “Z” endorsement on the licence, which enables the moving of a bus, is a qualification stated to be an asset. SAs are not required to have any drivers licence. [223] The evidence does not support the union’s position that the CCC and SA jobs are substantially the same. There are a number of tasks done by CCCs as well as SAs, Agency Officers and Customer Service Officers. However, those jobs are not at all substantially the same as the CCC job. The union’s primary comparator bargaining unit position, SA, is essentially a selling related job. The contrast is stark, in that CCCs do not do any selling at all. The complete absence of overlap in the core functions of the two positions is manifested in the evidence that the hiring of some 18 CCCs did not reduce the amount of time SAs spend on selling related duties, and there was no reduction in the number of SAs employed. [224] Union counsel argued that when CCCs show customers how to use Presto and vending machines to purchase fare, they are “selling” in the modern world. That in my view is an unreasonable and unjustified stretching of the meaning of selling. Even if that definition of selling is accepted, which I do no not, showing customers how to use ticketing machines forms only a very minor part of a CCC’s overall job, in contrast to SAs who spend most of their workday selling. [225] In OPSEU and Ministry of Government Services, (2013) 229 LAC (4th ) 211 (Petryshen), the Board was required to decide whether the employer contravened the implied restriction on assignment of work previously performed by bargaining unit employees to positions outside the bargaining unit. Like here, the issue was to determine the point at which the excluded positions are drawn into the bargaining unit. Following a review of the jurisprudence, Vice-Chair Petryshen summarized the applicable principles at pp. 227-228. The following at paragraph 8 is particularly relevant here: 75 The integrity of the bargaining unit is affected, and a contravention of the implied restriction arises when the excluded persons are assigned bargaining unit work to the extent that they spend close to the majority of their workday performing that work. When this occurs, the excluded employees, in effect, become drawn into the bargaining unit. In determining whether the implied restriction has been triggered in any given case, it is necessary to consider the factors referenced in the Pilon decision, i.e. quantity of work, quality of work and overlap of duties. The focus when examining the quantity of work is on the time devoted to the transferred work by those outside the unit. Apart from the quality of work, an overlap of duties may disclose that the transferred work did not exclusively belong to the bargaining unit and may therefore not be protected by the implied restriction. [226] Applying the relevant principles to the evidence before me, I find that the CCCs do not perform bargaining unit work to such an extent so as to draw their positions into the bargaining unit. The Project Officer position [227] Neither party took issue with the accuracy of the PO and PC job descriptions. Union witness, Mr. Lehman, compared the position missions, and roles set out in the respective job descriptions. He has worked as a PC since 2009, and had oversight over a PO who was in his group doing the ticket vending machine project. He testified that based on the job descriptions and his personal experience POs did all except four position roles set out in the PC job description. Union counsel pointed out that while the words describing some of the roles are different, they mean the same. He pointed out that in fact even the language is nearly identical in the two job descriptions describing many of the roles. I agree. I find no evidence from any of the employer witnesses explaining the similarities in the language. Nor did employer counsel. [228] The crux of the employer’s argument was that while both positions manage projects, “the types of projects they manage are fundamentally different”. That, however, is not borne out by the evidence. Counsel relied on Mr. Lehman’s definition of “a project” as “an undertaking with a start and a completion date”, as supporting his assertion. It is true that Mr. Lehman agreed under cross- 76 examination, when counsel put to him that painting lines and purchasing pencils would be “projects” according to his definition. I agree that Mr. Lehman’s definition of project was so broad and vague to the point of absurdity. However, that is not a reason to discredit all of Mr. Lehman’s testimony as employer counsel suggested. Mr. Lehman testified about the projects he was involved in, as well as the projects POs did. So did the employer witnesses. None of them testified that either position was actually involved insignificant undertakings like painting lines or purchasing pencils. The Board heard evidence of actual projects the two positions did. That is the evidence relevant to the determination of the grievance. [229] The evidence discloses that POs are employed in numerous departments and areas providing specific and varying services within Metrolinx. Thus, the Revenue Accounting Department is focussed on fare revenue, finance and accounting. The Bus Fleet and Facilities Division is responsible for Metrolinx’s non-revenue fleet of vehicles. The Station Services and Standards Department’s role was developing processes and looking for improving efficiency and savings in a wide variety of areas. The INIT Department’s responsibility is to ensure that high tech information systems within all Metrolinx facilities operate efficiently and in compliance with the Design Requirements Manual. [230] Managers in these areas of Metrolinx testified about the various projects their POs were involved in, and what specifically they did in relation to projects. Thus the PO in the Revenue Accounting Department maintained data relating to fare transactions, analysed the data and provided reports to other departments. The Non-Revenue Fleet PO’s duties required regular dealings with MTO, and was responsible for the efficient operation and proper use of vehicles and vehicle equipment like black boxes. The Station Services and Standards PO’s role was to develop processes and find ways to increase efficiencies in the wide range of services the department provides. The INIT POs role was to support all IT requirements for projects throughout the Metrolinx system. 77 [231] It is clear that Mr. Lehman, as a PC, did very little, if any, of the specific work these POs did for their respective departments. However, in my view, that is not the appropriate test for purposes of determining whether the two positions perform substantially similar work for purposes of the recognition clause in this collective agreement. Such a test would be akin to comparing tasks, which the employer objected to successfully in relation to the CCC position. The flaw in such a test becomes apparent, if one were to compare the work of the various POs the Board heard about. It is clear that there was very little by way of duties commonly performed by the POs. They all supported Metrolinx projects. However, they did so by doing different tasks pertaining to specific aspects of those projects, which the particular department had responsibility for. In short, no two POs the Board heard about performed similar work to any significant extent. [232] I find on the basis of the evidence that the PC role was also to support projects, except that they did so by overseeing and coordinating the overall building and implementation of the projects. PC’s ensured that the standards and requirements of all impacted departments are considered and met when projects are done. They do this by liaising with project managers and the various trades and specialists involved. The POs, on the other hand act as the lead on specific aspects of projects, for example the IT requirements, which other Pos may not be involved in. [233] Employer counsel emphasized that “project” is a very broad and generic term. I agree. However, the evidence is that projects, for example Presto, impact on multiple departments and services offered by Metrolinx. The success of a project depends on the ability meet the requirements of all departments and services impacted. In short, both POs and PCs work towards a common goal, the successful completion and implementation of Metrolinx projects. [234] The circumstances here are very different to that relating to CCCs and SAs. There the union viewed “customer service” broadly. It considered “selling” to be just another customer service, and therefore argued that the primary function of both 78 SAs and CCCs was customer service. The difference, however, is that SAs spent the vast majority of their workday on a clearly identifiable subset of customer service, namely, selling and collecting revenue. The CCCs had no selling duties at all. [235] In contrast, there is no evidence that POs predominantly did particular types of projects, different from those done by PCs. For example, that one position was involved in large and complex projects, and the other only in small and simple projects. While employer counsel argued that the “types of projects” the two positions did were fundamentally different, he did not point out what that fundamental difference is. There is no evidence substantiating such a difference. [236] The documentary evidence, and Mr. Lehman’s testimony is uncontradicted that both POs and PC report to the Senior Project Engineer Officer. The educational qualifications and experience required for both positions also are substantially similar. [237] The evidence establishes that the PO in the Revenue Accounting Department assumed duties as supervisor of some twenty clerks, shortly before their supervisor left Metrolinx in 2016. There is no evidence as to how long the PO did this supervisory role, whether it was for a brief period until the supervisor position was filled, or whether the PO continued those duties until her retirement in 2018. There is evidence, however, that during the period when she had those duties, the PO spent 50% of the time on supervisory duties. Mr. Lehman agreed that as a PC he had no supervisory duties over any employees. Does this support a finding that the PC position is substantially different? I do not think so. It is significant that employer did not point to any reference to supervision of employees in the PO job description. Other than the Revenue Accounting PO, there is no evidence that any other PO had similar supervisory duties. The other employer witnesses described in detail the duties of their particular POs. None of them testified that the POs had any supervisory duties. In the circumstances, it is not reasonable to conclude that supervision of staff is an integral part of the PO 79 job. It appears that the Revenue Accounting POs assignment to those duties was a temporary aberration due to the circumstances the department was at the time. [238] I find that the application of the same principles that were applied in relation to the CCC position to the PO position leads to the opposite result. I find that qualitatively and quantitatively, the role of POs in relation to Metrolinx projects is substantially similar to that of PCs to such an extent as to draw the PO position into the bargaining unit, and I so declare. [239] It follows that the union’s grievance fails as it relates to the CCC position. It is upheld with respect to the PO position. [240] In the grievance form filed back on December 9, 2010, the union had set out a number of remedies it was seeking. In the instant proceeding neither party addressed the issue of remedy. Also considering the passage of almost ten years since the grievance was filed, I remit the issue of remedy back to the parties to attempt to come to an agreement in light of the Board’s findings. In the event they are unable to do so, the Board remains seized with jurisdiction. Dated at Toronto, Ontario this 23rd day of April, 2020. “Nimal Dissanayake” ________________________ Nimal Dissanayake, Arbitrator