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IN THE MATTER OF AN ARBITRATION PURSUANT TO THE TORONTO TRANSIT COMMISSION LABOUR
DISPUTES RESOLUTION ACT, 2011
BETWEEN: TORONTO TRANSIT COMMISSION
(the Employer”)
- and -
AMALGAMATED TRANSIT UNION, LOCAL 113
(the “Union”)
(Re. First Collective Agreement for a Bargaining Unit
Certified in OLRB Case No. 1147-15-R)
Before: Eli A. Gedalof, Sole Arbitrator
Appearances
For the Employer: Marni Tolensky, Megan MacRae, Matt Hopkins, Sean Milloy, Meghan Rogers, Sue Motahedin
For the Union: Alanna Mihalj, Frank Grimaldi, Max Matharu, Cliff Piggott
AWARD
Introduction
1. I was appointed as interest arbitrator under the Toronto Transit Commission Labour Disputes Resolution Act, 2011 (the “Act”) to determine the terms of the first collective agreement for the following bargaining unit,
for which the Amalgamated Transit Union, Local 113 was certified on August 21, 2015:
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All full-time and part-time employees and students of the Toronto Transit Commission employed in the City of Toronto in the positions of Customer
Service Representative, Senior Customer Service Representative, Customer Information Representative, Lost Articles Customer Service
Representative, Senior Lost Articles Customer Service Representative and Metropass Discount Plan Representative, save and except Supervisors and
persons above the rank of Supervisors.
2. The bargaining unit, referred to by the parties as the “Customer Service Centre” or “CSC” employees, is composed of approximately 55 employees, 46 of whom are full time and 9 of whom are part time. At various times since
certification there have been between two and six summer students, and anywhere from one to nine temporary employees. At the time of the parties’ submissions, the bargaining unit was composed as follows:
Position # of
EEs FT/PT Shift Hours
Customer Information
Reps.
17
FT Rotating 8am-4pm OR 10am-6pm
5 PT Rotating 8am-4pm, 8am-11:30am, 10am-6pm OR
2:30pm-6pm
Customer Service Reps.
12 FT Rotating
7 am-3pm OR 11am-7pm
4 PT Rotating (Mix days/nights in same week)
Weekday: based on office needs but
typically: 5pm-10pm,
5:30-10pm, 6pm-10pm as well as days shifts as
needed to cover e.g. sickness or vacation
absences.
Weekend: 7am-2:30pm, 7am-12pm, 12pm-5pm,
2:30pm-10pm OR 5pm-
10pm
Senior
Customer Service Reps.
6 FT Rotating 7am-3pm OR 2pm-10pm
0 PT - -
Lost Articles
Reps.
2 FT Fixed 9am-5pm
8am-4pm
0 PT - -
Senior Lost Articles Reps.
1 FT Fixed 9am-5pm 8am-4pm
0 PT - -
Metropass Discount Plan
(MDP) Reps.
8 FT Reps Rotate Monthly (Thurs open hours and every first
and last day of month = 7am-7pm) mix days/nights
8:25am-4:25pm, 9:20am-5:20pm,
6:55am-2:55pm, 7am-
3
3pm OR 112:20am-7:20pm
0 PT -
3. In broad terms, Customer Service Representatives handle complaints,
compliments and inquiries from the public via phone and in writing, and participate in investigations in conjunction with Divisional Management. The Senior Customer Service Representatives perform the same work but also
handle customer interactions via Twitter and escalated calls. Customer Information Representatives provide information and assist customers with inquiries by telephone. Lost Articles representatives receive, document and
sort found items and handle in person and telephone inquiries from customers, as well as preparing unclaimed items for disposal, auction or donation. Metropass Discount Plan Representatives handle customers in person or over
the phone, processing applications, managing accounts and selling and exchanging various fare media.
4. There are two features of this bargaining unit that bear mentioning at the outset, as these features underlie the most substantial disputes between the parties in this arbitration.
5. The first feature is that with the exception of the 3 lost articles representatives, who work out of Bay Subway Station, all of these employees
work out of the TTC’s head office at 1900 Yong Street, in what are essentially “office” jobs. Local 113 has for the most part sought to replicate the provisions of the collective agreement that covers its other members at the TTC, and
maintains that that collective agreement (referred to by the parties at the “Blue Book”) already covers employees similarly situated to the CSC employees. Local 113 relies in particular on the incorporation of the Wheel-
Trans Office, Clerical and Technical (OCT) employees into the Blue Book after they were organized in 2001. While Local 113 acknowledges that it cannot compel the TTC to incorporate the CSC bargaining unit into the Blue Book, it
argues that this would have been the result in a free collective bargaining environment, and that the agreement should replicate that outcome to the greatest extent possible.
6. The TTC argues that this is the first bargaining unit organized by the ATU in its head office environment, and that as these employees perform
fundamentally different functions from the vast majority of the employees working under the provisions of the Blue Book, many of those provisions are either inapplicable or inappropriate for the employees working at the CSC. As
will become apparent, this fundamental difference in viewpoints underlies many of the disputes between the parties.
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7. The second feature is that the bargaining unit—and the bargaining unit description certified by the Labour Relations Board—includes part-time
employees, in particular in the Customer Service Representative positions. One of the fundamental stated priorities of Local 113 entering bargaining and this arbitration was the phasing out and eventual elimination of part-time
employees. As will be discussed further below, the ATU has consistently resisted the introduction of part-time employees in its broader bargaining unit, which includes a large number of operators, and opposes any provision that
would suggest any softening in that position. The TTC has vociferously opposed any restriction on the use of part-time employees in the CSC bargaining unit, arguing that it is highly dependent on the use of these part
time-employees to meet its customer service scheduling requirements and to address a very significant absenteeism problem that exists within the CSC group in particular.
The Act and Principles of Interest Arbitration
8. The Act sets out the duty of the arbitrator, and a non-exhaustive list of relevant criteria as follows:
Duty of arbitrator
10. (1) The arbitrator shall examine into and decide on matters that are in dispute and any other matters that appear to him or her necessary to
be decided in order to conclude a collective agreement between the parties, but the arbitrator shall not decide any matters that come within
the jurisdiction of the Board.
Criteria
(2) In making an award, the arbitrator shall take into consideration all factors it considers relevant, including the following criteria:
1. The employer’s ability to pay in light of its fiscal situation.
2. The extent to which services may have to be reduced, in light of the decision or award, if current funding and taxation levels are not
increased.
3. The economic situation in Ontario and the City of Toronto.
4. A comparison, as between the employees and other comparable employees in the public and private sectors, of the terms and conditions
of employment and the nature of the work performed.
5. The employer’s ability to attract and retain qualified employees.
6. The purposes of the Public Sector Dispute Resolution Act, 1997.
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Arbitrator to remain seized of matters
(3) The arbitrator shall remain seized of and may deal with all matters in
dispute between the parties until a collective agreement is in effect between the parties.
…
9. In support of its argument concerning the principles to be applied in this case the ATU referred to the following authorities: Agrium Advanced Technologies Inc. v. Communications, Energy and Paperworkers Union of
Canada (First Collective Agreement Grievance), [2011] O.L.A.A. no. 524 (Burkett); Canada Building Materials Company, [1990] OLRB Rep. October 1012; Diversicare Canada Management Services Co. (Hawthorn Park
Retirement) v. Hospital Employees’ Union (Collective Agreement Grievance) (2007), 167 L.A.C. (4th) 265 (B.C.) (Taylor); Surrey (City) v. Surrey Fire Fighters’ Assn. (Wage Grievance), [2011] B.C.C.A.A.A. No. 50 (McPhillips);
Nelson (City) v. Nelson Professional Fire Fighters’ Assn. (Wage Grievance), [2010] B.C.C.A.A.A. No. 174 (McPhillips); Participating Hospitals v. Service Employees International Union (Renewal Collective Agreement Grievance),
[2010] O.L.A.A. No. 629 (Burkett); Clarington (Municipality) v. Clarignton Fire Fighters’ Assn. IAFF Local 6129 (Renewal Collective Agreement Grievance), [2010] O.L.A.A. No. 481 (Burkett); Afton Park Long Term Care Community v.
Ontario Federation of Health Care Workers, L.I.U.N.A., Local 1110 (Collective Agreement Grievance), [2011] O.L.A.A. No. 100 (Luborsky); Air Canada v. National Automobile, Aerospace, Transportation and General Workers Union
of Canada (CAW-Canada), Local 2002 (Final Offer Selection-Pension arrangements for new hires), [2011] C.L.A.D. No. 362 (Burkett); K Mart Canada Ltd. v. United Food & Commercial Workers’ Union, Lo al 1518, [1993]
B.C.C.A.A.A. No. 241 (Ready); Halifax (Regional Municipality) and I.A.F.F. Loc. 268 (Re) (1988) 71 L.A.C. (4th) 129 (N.S.) (Kuttner); Board of Education for the City of Hamilton, [1993] OLRB Rep. April 308; Great Northern Nursing
Centre v. Ontario Nursing Assn. (Collective Agreement Grievance), [2010] O.L.L.A. No. 325 (Jollliffe); Re Building Service Employees, Local 204 and Peel Memorial Hospital (1969), 20 L.A.C. 31 (Weiler); University of Toronto v.
University of Toronto Faculty Assn. (Salary and benefits Grievance), [2006] O.L.A.A. No. 782 (Winkler); McMaster University, [2015] O.LR.D. No. 27, McMaster University and McMaster University Faculty Assn., Re, [1990]
O.A.A.A. No. 84 (Shime); Peel Halton Acquired Brain Injury Services v. Ontario Public Service Employees Union, Local 587 (Collective Agreement Grievance), [2005] O.L.A.A. No. 619 (Burkett); Newfoundland (Treasury Board) and
N.A.P.E., Re (1985), 52 L.A.C. (4th) 250 (Nfld.) (Buffett); Niagara (Regional Municipality) Police Services Board and Niagara Region Police Assn. (Re), [1997] O.L.A.A. 1116 (Jackson); Toronto Transit Commission v. Amalgamated
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Transit Union, Local 113 (Collective Agreement Grievance), [2008] O.L.A.A. No. 787 (Burkett); Residence Champlain v. Ontario Nurses’ Assn. (Staffing
Grievance), [2007] O.L.A.A. No. 219 (Simmons); and, York Central Hospital v. Ontario Public Service Employees Union, Local 374 (unreported, March 31, 2006) (Albertyn).
10. The TTC, for its part, referred to the following authorities: Re British Columbia Railway Co. and Brotherhood of Maintenance of Way Employees,
Caribou Lodge, 221, unreported, June 1, 1979 (Shime); Niagara (Regional Municipality) Police Services Board and Niagara Region Police Assn. (Re), supra; The Police Services Board for the City of Brantford, unreported
November 1, 1991 (Jackson); The Regional Municipality of Niagara Police Services Board, unreported, October 16, 1992 (Joyce); The Regional Municipality of Peel Police Services Board, unreported, October 2, 1992
(Joyce); Agrium Advanced Technologies Inc. v. Communications, Energy and Paperworkers Union of Canada (First Collective Agreement Grievance), [2011] O.L.A.A. No. 534 (Burkett); Re (The) Brick Warehouse Corp. And R.W.D.S.U.,
Loc. 1000 (1994) 43 L.A.C. (4th) 443 (Burkett, Mayne & Murray); Rainbow Concrete Industries Co. and I.U.O.E., Local 793, Re (2011) 205 L.A.C. (4th) 219 (Surdykowski, Quinn & Thornton); Toronto Civic Employees’ Union Loal
416 and Canadian Union of Public Employees, Local 179 and City of Toronto – Mediation/Arbitration of 2002-2004 Collective Agreements, unreported, November 5, 2002 (Armstrong); Mon Sheong Foundation Richmond Hill Long-
Term Care Centre and Service Employees International Union, Local 1, 2012 CanLII 56493 (ON LA)(Knopf); White Eagle Long Term Care Resident v. Ontario Nurses’ Assn (Collective Agreement Grievance), [2015] O.L.A.A. No.
123 (Kaplan); Toronto Transit Commission and ATU, Local 113, unreported, March 28, 2017 (Brunner); Toronto Transit Commission and ATU, Loal 113 (Holiday Pay), Re (2013) 116 C.L.A.S. 25 (Slotnick); Ont. Reg. 191/11:
Integrated Accessibility Stnadards-Customer Service Standards, under the Accessibility for Ontarians with Disabilities Act; OPSEU and LCBO (Interest Arbitration award), unreported February 10, 2017 (Kaplan); and, OPSEU and
LCBO (Interest Arbitration award) unreported March 27, 2017 (Kaplan). 11. I have reviewed and considered each of these awards, but it is not
necessary in this decision to set out these precedents in great detail, because with one notable exception, the parties generally agreed on the applicable principles that interest arbitrators should apply in settling first collective
agreements. The bulk of their argument was directed toward which of those principles should carry the most weight and how they ought to be applied in the circumstances of this case. Both parties referred to the principles of
replication, comparability to appropriate comparator agreements, general economic conditions and the legislative framework set out above. Notwithstanding the explicit reference to “ability to pay” in the legislation,
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however, the ATU argued that this consideration has generally been rejected by arbitrators, whereas the TTC emphasises that it operates under a highly
constrained budget and that it would be inappropriate to dismiss this consideration entirely as the ATU suggests.
12. Both parties agree, however, that the goal in arbitrating a first collective agreement is to replicate to the greatest extent possible what the parties would have freely bargained, while ensuring that the agreement reflects an
appropriate balance of the parties’ respective interests. The agreement ought not to be substandard in comparison to the industry and ought not to undermine employee confidence in the collective bargaining process. Neither
should a first collective agreement represent a “breakthrough” for employees such as would sour the employer on the relationship, and conflict with the nascent nature of the relationship. Collective bargaining is generally
incremental by nature and absent compelling or exceptional circumstances this should be reflected in an arbitrated first collective agreement.
13. Notwithstanding the parties’ disagreement with respect to the extent to which I ought to consider the TTC’s ability to pay, it is not in my view necessary to explore this issue in any depth. This is because as a practical
matter I find that in applying the principles upon which the parties do agree and in awarding the provisions set out below, the resultant agreement addresses the financial concerns the TTC identified with respect to some of
the union’s proposals. It is noteworthy that the parties essentially agree on the appropriate across the board increases for the period subsequent to the certification and up to the date of this award, and are relatively close for the
period thereafter (although they do not agree on the rationale for those increases). Further, where there are increased costs resulting from this award, these costs relate to a relatively small number of employees and are
consistent with what the TTC has already agreed (or been ordered) to pay its unionized employees. They are, in short, reflective of the kinds of incremental gains a union can be expected to achieve in a first freely bargained collective
agreement. 14. The dispute between the parties that bears a closer examination is the
role that the provisions of the Blue Book ought to play in seeking to replicate the results of free collective bargaining and striking the balancing of interests described above.
15. As noted above, Local 113’s positon from the outset is that the general provisions of the collective between the parties should mirror those of the Blue
Book, which is the collective agreement applicable to all of Local 113’s other members at the TTC. The Blue Book contains General Provisions applicable to full scope of the recognition clause in that agreement, and then a series of
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articles applicable to various distinct aspects of the TTCs operation. Although Local 113 ultimately conceded that it could not force the TTC to integrate the
Customer Service bargaining unit into the Blue Book—i.e., that it could not bargain the scope of the collective agreement to impasse—it maintains that this would be the most likely outcome of free collective bargaining, and that I
should therefore replicate this result to the greatest degree possible. Local 113 argues that over its lengthy history of bargaining with the TTC it has consistently rolled every new group it certifies into its existing agreement. In
support of this position Local 113 points to the integration of Revenue Operations employees in or around 2000, Wheel-Trans employees in or around 2001 and Traffic Checkers in or around 2003. In each case, the parties
agreed to apply the general provisions of the Blue Book to these newly organized groups, and bargained an additional Article to supplement those provisions and address issues specific to that group.
16. The TTC argues that Local 113 has significantly exaggerated the precedential value of the historical incorporation of newly organized
bargaining units in the Blue Book. There is not, argues the TTC, a decades long history of consistently incorporating new units into the Blue Book as Local 113 suggests. Rather, twelve to fifteen years ago, the parties incorporated
three relatively small units into the Blue Book over a period of three years, and there is no evidence of any significant practice before or since. The TTC emphasises the differences between the working environment of the CSC
employees and the vast majority of the employees working under the provisions of the Blue Book, and the inapplicability or irrelevance of many of those provisions in the context of the CSC bargaining unit.
17. There is a degree of merit in both parties’ positions. The general provisions of the Blue Book have been reached over a long history of collective
bargaining, and are applied to employees in several different departments carrying out quite different functions, including at least some functions that are comparable to functions carried out by the employees in the CSC. The fact
that these parties have freely bargained these provisions with respect to other employees and members is an obvious indication of what they might have freely bargained here. Further, there is value in the consistency and relative
certainty that is created when the same parties apply the same provisions with which they are already familiar across the workforce.
18. However, there are limits to the extent to which the Blue Book provisions provide a compelling precedent. Some provisions are the product of a mature bargaining relationship, attained over time, and would represent a
breakthrough in a first collective agreement. Many of the provisions in the Blue Book reflect the unique nature of the workforce the parties were contemplating when those provisions were bargained. Some of those
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provisions have subsequently been applied to newly organized units that the parties voluntarily agreed to integrate into the broader collective agreement.
In some cases, the provisions contain clauses and references that do not appear to relate to those more recently integrated units. There may be any number of explanations for why the parties proceeded as they did, but the
most obvious is that once the parties are agreeing to integrate a new unit into the existing collective agreement, they must make choices about whether or not it is worthwhile to amend existing provisions, possibly disrupting the status
quo, or whether to simply allow for some degree of anachronism to be addressed only if necessary. In the colloquial, the tail does not generally wag the dog, and this aphorism is reflected in the Blue Book provisions.
19. In the instant case, given that absent the agreement of the parties there is no mechanism by which the CSC unit can be integrated into the Blue Book,
the calculus is slightly different. In particular, given the distinct nature of the CSC unit from the vast majority of the employees covered by the Blue Book, I see little value in incorporating into a stand-alone agreement references from
the Blue Book that have no apparent application to employees in the CSC. Such an approach is not consistent with replication, because it does not reflect what the parties could be reasonably expected to bargain in the context of a
stand-alone agreement (although as noted they might well and quite reasonably agree to them in a different context). That does not mean, however, that the substantive right underlying those provisions is not
instructive in determining the appropriate terms for the agreement. 20. In the result, in determining the terms of the collective agreement I
have given significant weight to the provisions of the Blue Book. Where the employer has not articulated a compelling reason to believe that the parties would have deviated from those provisions and where they can be reasonably
applied in the context of the Customer Service unit, I find that they are the best reflection of the likely outcome of free collective bargaining. Where the employer has provided compelling reasons to depart from those provisions,
such as where they contain terms that are clearly inapplicable or where they would represent a dramatic breakthrough, I have had regard to appropriate comparator agreements both within and outside the TTC. It is worth noting
that having expressed this view in the course of the arbitration, the parties were able to agree to a number of additional provisions, and those agreements are reflected below. It further bears emphasising that while the Blue Book
provisions provided the foundation for many of the proposals before me, nothing in this award should be understood as determining the merits of either removing or altering the provisions or protections of those provisions with
respect to employees who are already governed by them. Those provisions do not define the status quo for employees in the CSC and this is a fundamental distinction between the CSC group and the larger bargaining unit.
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21. The terms set out in this award can be divided into three categories:
1) agreed items;
2) items where there was substantial agreement between the parties or
which were identified as of secondary interest; and,
3) contentious items.
Agreed Items
22. Prior to commencing the arbitration in this matter, the parties engaged in mediation and were able to agree to a small number of provisions. In the course of the arbitration, the parties agreed to a number of additional
provisions. In accordance with section 13(3) of the Act it is not necessary for me to make any orders with respect to agreed items, which will form part of the Collective Agreement, but because many of those agreements were
transmitted in the course of the hearing and for the sake of clarity, the following is the list of agreed articles. While the parties also identified articles from the Blue Book which they were agreeing not to incorporate as “agreed
items”, I have not set out those articles here, and this award reflects the totality of the provisions that I award will form the Collective Agreement, as opposed to the totality of the parties’ agreements in arriving at that Collective
Agreement (numbering does not refer to article numbers). The following items were agreed to prior to commencing the arbitration and will form part of the collective agreement:
1. Purpose of provisions; 2. Employees’ Representatives;
3. Reinstatement of employees’ representatives; 4. Conditions for union shop and check-off; 5. Continuity of service to the public;
6. Pension; 7. Bereavement leave; 8. Leave of absence;
9. Union Leaves; 10. Technological change; 11. Non-Discrimination; and,
12. Safety footwear.
23. In the course of the arbitration, the parties also agreed to the following
provisions which will form part of the collective agreement:
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1. Management Rights (subject to formatting issue addressed below);
2. Group Insurance; 3. Probationary Period; 4. Tuition Aid;
5. Substitution Allowance; 6. Pay Direct Deposit; 7. Injury at Work;
8. Transit Pass for Retirees; 9. Consultation Committees;
10. Process for public relations complaints;
11. Process for Job Posting and Filling; 12. Training Pay; 13. Pension for Part-Time Employees; and,
14. Pay in Lieu and applicable articles for Part-Time Employees.* *I note that Local 113’s agreements with respect to part-time employees
were in the alternative to its primary position in support of the phasing out of part-time employees.
Substantial Agreement 24. There were a number of provisions where Local 113 had proposed
replicating language from the Blue Book, where the employer was prepared to agree to what it believed was substantially the same right, but did not wish to incorporate language and references from the Blue Book that it asserted
were inapplicable to CSC employees. The employer has essentially proposed the union’s language while removing references that, for the most part, appear to relate to operators. In some instances, the only basis for inclusion
of the apparently redundant language that Local 113 could articulate was a concern that any departure from the established language could have unanticipated consequences. It is of course true that small changes in
language can have unanticipated interpretive consequences in a future matter, and it would be naïve to believe that one could anticipate the effect of every change. However, I also agree with the employer that references to
positions outside the bargaining unit in this collective agreement that are patently inapplicable are likely to create more interpretive uncertainty than they would resolve. However, as noted above, where there is no basis for
divergence between the two agreements, I am inclined toward the Union’s position. In light of these considerations, I direct that the following provisions shall be incorporated into the collective agreement:
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Discipline
25. The parties proposed language with respect to a “discipline” provision that was substantially the same (and largely based on the provisions of the Blue Book) with three exceptions.
26. First, the Employer sought to separate the discipline provision from the management rights clause on the grounds that while related, discipline and
management rights are separate issues. I accept the Union’s position that this is not a compelling basis for departing from the provisions agreed to between the parties in the Blue Book, and therefore direct that a single “Management
and Discipline” provision form part of the collective agreement as per the Union’s proposal.
27. Second the, Employer has proposed removing a reference to an obsolete form from the language. The union withdrew its objection to this amendment in reply and I therefore accept the Employer’s position in this regard.
28. Third, the Employer has proposed a divergence from the language of the sunset provision in the Blue Book, so that it will not be required to destroy
disciplinary documents after 5 years, but instead only once the period prescribed by law had expired. The Employer does not dispute that the use of these records in any disciplinary proceeding would be constrained by the
sunset clause, but argues that the actual destruction of the documents would run afoul of the current legislative requirements for record keeping, and that it may require those documents for other (non-disciplinary) purposes, such as
addressing complaints arising from the same time period. The Union did not dispute the Employer’s record keeping obligations, but in reply sought language that would restrict access to the documents to the human resources
department and exclude the employee’s supervisor or manager. I accept the Employer’s argument that such a restriction would unduly limit the Employer’s ability to manage, and that the sunset language proposed by the employer
provides adequate protection to employees to ensure that the documents are not used in a manner that is inconsistent with the sunset clause.
I therefore direct that subject to combing the Management and Discipline provisions into a single article in the collective agreement, the Employer’s proposal as set out at pages 52-53 of
its brief shall form part of the collective agreement.
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Grievance Procedure
29. The parties have proposed substantially the same grievance and arbitration procedure with two exceptions. The Employer has updated references to titles to reflect the appropriate participants in the process from
the CSC. The Union agreed to these amendments in reply. The Employer has also proposed diverging from the Blue Book provisions to remove references to an agreed list of arbitrators. The Union wishes to maintain a single list of
arbitrators for Local 113 grievances generally. The employer maintains that this aspect of the procedure, which is rooted in the history of a large bargaining unit with hundreds of grievances, is not appropriate for a separate
unit of 50 employees. 30. In my view, in the absence of an agreement between the parties to
adopt a mutually acceptable list of arbitrators, it would not be appropriate to compel them to reach such an agreement. The parties can either agree to adopt such a list voluntarily, agree to arbitrators on an ad hoc basis, or the
Labour Relations Act, 1995 provides the appropriate mechanism for the appointment of arbitrators where the parties cannot agree.
I therefore direct that the Employer’s proposal at page 55-58 of its brief shall form part of the collective agreement.
Long Term Disability 31. In the course of the arbitration, the parties agreed that I should direct
that the following provision with respect to Long Term Disability form part of the Collective Agreement in conjunction with a letter of understanding:
Long Term Disability Benefit This section applies to all full-time employees.
The TTC Agrees to provide all employees on Long Term Disability, benefits in accordance with a Letter of
Understanding, to be dated [date of award].
The LTD monthly cap shall be $2, 550 for claimants who
complete the qualifying period on or after [date of award].
Only claimants who completed the qualifying period for LTD
benefits prior to [date of award] shall continue to be entitled to the LTD benefits they were entitled to prior to that date.
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32. The Letter of Understanding shall read as follows:
The parties confirm the agreement with respect to the long-term disability plan, attached to and forming part of the
Collective Agreement.
The benefits under this plan will be provided by the TTC as set
out in this letter and in Appendix “A” to this letter (it being agreed that this letter and Appendix “A” form part of the Collective Agreement between the parties). The TTC may
appoint and utilize the services of an insurance company or other agent, as it may decide from time to time, for the purposes of carrying or administering the long term disability
plan.
In the event a dispute arises with respect to eligibility for long
term disability benefit or the amount of such benefit, the matter may be dealt with pursuant to the Grievance and Arbitration provisions of the Collective Agreement for the
purpose of determining such eligibility or amount.
The TTC will pay 100% of the cost to provide, and will provide
the benefits under the long term disability plan. It is understood that the TTC will not be under any obligation to maintain a separate fund of any type for the purpose of either
purchasing coverage for or making payments of these long term disability benefits.
Eligible employees will be required to exhaust all vacation pay entitlement before commencing to receive long term disability benefits.
References to Appendix “A” in the Letter of Understanding are to the existing Appendix between the parties applicable to the larger bargaining unit, save
that it shall be amended as necessary to reflect the bargaining unit at issue under this collective agreement.
Layoff, job security and recall policy 33. The Union agreed to the language proposed by the Employer for Layoff,
job security and recall policy with the exception of two elements of the provision in the Blue Book which the Union sought to maintain. The first related to the payment of O.H.I.P. premiums (as set out below, the relevant
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payment is now for “Ontario Health Premium” or “OHP”). The Employer has opposed the union’s proposal for the inclusion of an Employer obligation to
pay the OHP, which it does not currently provided for the CSC employees. As set out under the Contentious Items heading below, I have effectively awarded the Union’s proposal on the OHP (although not specifically the Blue
Book language), and I therefore also order the inclusion of the Union’s proposal addressing the treatment of these payments on layoff, in the same manner it is addressed under the Blue Book.
34. The Employer has also proposed modifying the “Seniority Upon Resumption” provision found in the Blue Book. The Blue Book provision,
proposed by the Union, reads:
Regular employees who are recalled and who resume work within 22
calendar months of lay off retain the same TTC and Bargaining Unit seniority held at the time of lay off for use in determining such things as vacation entitlement, job bidding, work and vacation selection.
Accumulation of additional seniority will commence on the day the employee resumes work.
The employer has proposed amending the non-exhaustive list of issues to which this seniority will apply to “such things as vacation entitlement and job applications”. The Employer’s proposal is related to its position that the
bidding and vacation selection processes under the Blue Book are not appropriate in the context of the CSC bargaining unit. As set out below, I have accepted the Employer’s positon in this regard, and also accept the Employer’s
articulation of the non-exhaustive list above.
I therefore direct that the Layoff and Job Security and Recall
Policy proposal found at pages 106-108 of the Employer’s brief shall form part of the collective agreement, with the following additional clause:
OHP
Employees who are laid off will receive a paid-up certificate indicating the expiry date of their OHP coverage, (normally three (3) months in advance). Coverage beyond the expiry date is the
responsibility of the employee concerned.
The TTC agrees not to seek re-imbursement for any advance
premiums paid on behalf of laid off employees, and will commence payment of premiums for employees who had
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previously qualified and who resume work within 22 calendar months of the date of lay off.
Defence of Employees
35. Local 113 initially proposed replicating the defence of employees provision from the Blue Book. And while it maintained that that provision was appropriate, it advised in reply that it was prepared to accept the Employer’s
proposed language provided that its own language concerning the use of outside counsel was also included. The Employer argued that the context in which the CSC employees work, in which they are not exposed to the same
risk of facing criminal charges arising from their work as other employees covered by the Blue Book might be, renders such a provision unnecessary. Further, the Employer argued that the broader language of its proposal, which
refers to its policy and extends beyond “charges” to include the kinds of civil proceedings to which employees in the CSC might be more likely to be exposed, is more likely to be useful to the CSC employees in any event, and
reflects how the TTC in fact deals with those kinds of complaints already. Finally, the Employer argued that its proposed language reflects what it has agreed to with other more comparable bargaining units in the workplace. I
accept the Employer’s position that this is an instance where the context in which the CSC employees work supports a departure from the provisions of the Blue Book. In reaching this decision, I need not make any finding with
respect to the scope of the provision under the Union’s proposal or the Blue Book.
I therefore direct that the following provision shall form part of the collective agreement:
Defence of Employees
The TTC shall provide for the defence and indemnification of
employees in actions, charges or complaints arising from the performance of their duties in the course and scope of their employment as outlined in the TTC Corporate Policy on Defence
and Indemnification of Employees, as amended from time to time. Each case shall be assessed on its own merits and a final decision will be made by the TTC’s Legal Department.
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Daily Guarantee
36. Currently, full time CSC employees work a seven-hour work day and 35 hours per work week. The TTC has proposed a seven-hour daily guarantee for full time employees.
37. Local 113 seeks to replicate the daily guarantee from the Blue Book applicable to the Wheel-Trans OCT employees, who are guaranteed an eight-
hour work day, inclusive of a paid lunch, which reads as follows:
The TTC guarantees an eight-hour daily guarantee to Customer
Service employees who perform their regularly assigned work. The value of an additional work assignment and any work performed beyond the regularly assigned work for the day shall be excluded
from the earnings on which the eight-our daily guarantee is calculated.
Work assignments shall be as set out in detail in regulations where mutually agreed upon.
38. In reply, and subject to its opposition to the use of part-time employees, Local 113 also proposed a four-hour daily guarantee for part-time employees. Local 113 argues that instability in scheduling was a primary impetus for
unionization and that maintaining current conditions would undermine employee confidence in collective bargaining.
39. The TTC maintains that there is no principled basis for expanding the daily hours of work and that the complex scheduling conditions and assignment language applicable to the crews working under the Blue Book are
not applicable in the CSC. Further, the increase in hours paid and the provision of a paid lunch would constitute a very substantial wage increase to employees without any benefit to the TTC.
40. I agree with the TTC that there is no compelling basis before me for fundamentally altering the hours of work in the CSC. To the extent that there
is a concern with respect to “instability” in scheduling, however, I agree that this should be addressed in regulations to be negotiated between the parties. Given the wide gap between the parties’ positions concerning hours of work,
use of part-time employees and the various related issues, I find that I am not in a position to determine the appropriate regulation of scheduling at this time, and this issue is therefore remitted to the parties.
I therefore award that the following provision form part of the collective agreement:
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The TTC guarantees a seven-hour daily guarantee for regular
full-time Customer Service Centre employees who perform their regularly assigned work.
Work assignments shall be as set out in detail in regulations where mutually agreed upon.
41. I remain seized in the event that the parties are not able to agree to scheduling regulations.
Overtime 42. Although the parties articulated the obligation differently, they both
agreed that overtime should be paid at one and one-half times the basic rate for hours beyond the daily guarantee.
In light of my award with respect to the daily guarantee above, I award that the following provision form part of the collective agreement:
Overtime shall be paid at one and one-half times the basic rate for all hours worked over seven actual working hours.
43. Local 113 has also proposed overtime distribution regulations which it asserts are consistent with other TTC employees. The TTC has provided a
more detailed account of the limited circumstances in which overtime is required in the CSC at this time, and how those circumstances differ from other areas of the TTC’s operation. I am satisfied that it is not necessary to
award further regulations at this time. If circumstances change, or if the parties so wish, they should have an opportunity to negotiate appropriate regulations before a particular outcome is imposed through arbitration.
Shift Premium
44. Both parties proposed that a shift premium of $0.75 be payable for work conducted on a regular shift commencing between 1:00 p.m. and 1:00 a.m.
and proposed similar language. Local 113 sought to extend this provision to part-time employees. The TTC sought to restrict the provision to full-time employees, as part-time employees are currently regularly scheduled to work
off-hours as a fundamental aspect of the job, without premium, and the union’s positon would constitute a substantial increase for these employees in a first collective agreement. I accept the TTC’s position.
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I therefore award that the following provision shall form part of
the Collective Agreement: Each full-time employee covered by this Agreement whose
normal work, exclusive of overtime, is continuously conducted on regular seven-hour shifts commencing between 1:00 p.m. and 1:00 a.m. the following day, shall be paid a shift premium of
$.75 per hour worked over and above the normal basic rate. Shift premium will be paid on basic rate. It will not apply where
any other premium such as overtime is paid. The above premium shall not be included in the computation of
any other premium. Seniority
45. The parties are in agreement that the seniority provision in the collective agreement should read as follows:
Seniority shall be in effect as agreed upon in detail from time to time as set out in the mutually agreed seniority regulations.
However, Local 113 has also proposed specific regulations be included in this award and as an appendix to the Collective Agreement, which it asserts are
consistent with its approach to seniority for various groups covered by the Blue Book. The TTC, on the other hand, proposes that this issue be remitted to the parties to negotiate, but in the alternative submits that it should be
clear that any regulation awarded is appended to the collective agreement in the same manner as, for example, the Wheel-Trans, regulation. The TTC, also in the alternative, proposed a slightly modified regulation which removed
references it asserted were inapplicable to the CSC. 46. Although I agree that these matters are best negotiated by the parties,
I am reluctant to remit the matter to the parties without any mechanism for resolving an impasse, particularly on a matter such as seniority which may be critical to employees. Given that the parties proposals are substantially
similar, I am therefore satisfied that I should award the initial regulation in conjunction with the collective agreement provision set out above. I note, however, that the provision in the collective agreement permits the parties to
negotiate amendments to those regulations at any time if they so choose. However, I also agree that the amendments to the Union’s proposed
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regulation put forward by the TTC appropriately reflect the context in which the CSC employees work.
I therefore award that subject to subsequent agreement of the parties, the seniority regulation to be appended to the collective
agreement shall read as follows: Seniority shall be determined as follows:
a) An employee’s seniority date shall be the date on which they
enter the Customer Service Centre group. If more than one
member of the bargaining unit has the same bargaining unit entry date, seniority shall be based on employee number.
b) The bargaining unit seniority date shall be determined by Local 113.
c) Customer Service Centre employees in bargaining unit positions as of August 21, 2015, will be allowed to utilize their last TTC entry date for the purpose of applying for vacancies
in the Customer Service Centre as well as for the purposes of vacation selection and lay-off.
d) For the purposes of clarity, separate seniority lists shall be maintained for part-time employees and students.
Work on Off Days 47. The parties were, ultimately, largely in agreement with respect to the
“work on off days” provision, with the exception that Local 113 sought payment for part-time employees, if any, working on off days, at the premium rate once they have worked 24 hours. I accept the TTC’s position that the
principle of replication does not support paying part time employees what are effectively overtime rates after only 24 hours, where no other similarly situated employee would be entitled to such a benefit.
I therefore award that the Work on Off Days provision found at page 163 of the TTC’s proposal shall form part of the collective
agreement.
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Contentious Items
Part-Time Employees 48. Among the more contentious issues in dispute between the parties is
the use of part-time employees in the CSC. Local 113 has consistently opposed the introduction of part-time employees into its pre-existing bargaining unit, and successfully negotiated the elimination of part-time employees when it
integrated the Wheel Trans OCT employees into that group. Local 113 argues that the role that part-time employees currently play in meeting the TTC’s scheduling needs could be met with the introduction of a “spares”, or full-time
employees who could be deployed as needed, subject to ensuring they received their full-time hours. Local 113 argued that given its history and bargaining priorities, the phasing out part-time employees would have been
the most likely outcome in free collective bargaining. 49. The Employer’s insistence on maintaining a part time complement was
equally emphatic. The TTC depends on the use of part-time employees in this bargaining unit to address seasonal variations and temporary increases in work load (such as fare exchanges or the introduction of PRESTO), as well as
to cover peak periods of call volume and various absences such as illness and vacation. Much of the TTC’s submission in support of maintaining the use of part time employees focussed on their use, and the scheduling flexibility that
these employees provide, to address a significant absenteeism problem that exists in CSC unit in particular.
50. The materials before me support the Employer’s position that the elimination of part time employees, at least at this time, would constitute a dramatic change in the manner in which the CSC operates. This is not a case
where the employer is seeking to alter the status quo by introducing part-time employees, but rather it seeks to maintain the status quo. Further, the Union’s proposed change would risk exacerbating what appear to be very real
scheduling difficulties that arise from a rate of absenteeism that distinguishes the CSC bargaining unit from any other area of the TTC’s operation. In the circumstances, notwithstanding Local 113’s emphasis on this issue as a
priority and the success it has exhibited in resisting the introduction of part-time employees in other areas, I find that the elimination of part-time employees would constitute a breakthrough at this time that would not be
appropriate in a first collective agreement. 51. Local 113 requested that in the event that I awarded the Employer’s
position with respect to the maintenance of part-time employees, that I make clear its opposition and that I make clear that such a decision with respect to the CSC is of no precedential impact with respect to the larger bargaining unit.
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It would of course be inappropriate for me to purport to dictate how a future a future arbitrator might view this issue. But I affirm, as is already clear, that
Local 113 has not here acquiesced to the use of part-time employees, and that my decision to accept the Employer’s position here is based on the facts before me relevant to the operation of the CSC.
I therefore do not award the Union’s proposal to phase out the use of part time employees, and will address specific terms and
conditions for part-time employees below. Term
52. Unlike some statutes providing for the arbitration of collective agreements, such as the Hospital Labour Disputes Arbitration Act or the first
contract arbitration provisions of the Labour Relations Act, 1995 the TTC Labour Disputes Resolution Act, 2011 does not provide for a statutory term. Consistent with its position that the collective agreement should largely
replicate the Blue Book, Local 113 seeks an expiry date of March 31, 2018, so that both collective agreements will expire at the same time and renewals can be bargained together. The Employer proposes that the agreement remain in
force and effect until August 21, 2020, which is just over 3 years from the date of this award.
53. For the reasons that follow, I find that a two-year collective agreement is appropriate in all the circumstances. On Local 113’s proposal, the collective agreement would expire less than a year after it was awarded. Quite apart
from any question as to whether such a term would meet the minimum requirements of the Labour Relations Act, 1995, it is simply not enough time for the parties to gain any meaningful experience under the terms of the
agreement or to provide for a reasonable period of stability prior to entering into negotiations for the renewal agreement. This is not to say that Local 113 is precluded from seeking to align the CSC collective agreement with the term
of the Blue Book in the future, but I find that it would not be reasonable to order it at this time. On the other hand, I also find that the term of over three years sought by the Employer is excessive, and that given Local 113’s interest
in ensuring that the CSC collective agreement departs minimally from the Blue Book, it would not have agreed in free bargaining to extend this agreement so far out in advance of its negotiations for the renewal of the Blue Book
agreement. A two-year agreement reflects a reasonable compromise between the parties’ positions and interests. I also note that a two-year term is consistent with the first contract provisions of the Labour Relations Act, 1995,
which provisions also reflect a balancing of interests between the parties to a first collective agreement.
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I therefore award that the following provision shall form part of the collective agreement:
This agreement shall continue in force and effect until July 31, 2019.
Either party to this Agreement may, not more than 90 days and not less than 60 days prior to July 31, 2019 present to the other
party in writing proposed terms of a new or further Agreement and/or amendments t this Agreement and a conference shall be held within 20 days from the first giving notice by either party
at which the parties will commence negotiations on the proposed amendments and/or the terms of a new Agreement. Failing agreement by August July 31, 2019, this Agreement and
all its terms will continue in force until a new Agreement is executed.
Hourly Wage Rates, Job Descriptions and Job Evaluation 54. In light of my determination with respect to the term of the collective
agreement, it is only necessary to address the parties’ submissions on wages for the two-year period covered by the collective agreement. Further, as noted above, the parties are to a significant extent in agreement with respect to the
appropriate across the board, or general, increases, although the rationale for their positions differs. The principal area of dispute between the parties relates to Local 113’s proposal to accelerate progression through the steps of the
wage schedule from the 5 steps over five years progression currently in place for CSC employees, to a 2 steps over two year progression consistent with the wage schedules in the Blue Book. Accelerated progression to the maximum
wage per classification was a priority in bargaining for Local 113. In support of its positon, Local 113 relied in particular on the fact that when it organized the Wheel-Trans OCT employees, it successfully compressed their pre-
unionization 36-month wage schedule to match the 24-month progression under the Blue Book.
55. The Employer argues that Local 113’s proposal would constitute an inappropriate breakthrough, resulting in wage increases for employees on the grid of up to 25% over two years, as compared to the approximately 4.8%
increases employees currently receive per step. The Employer referred to a number of external comparator agreements, under which step increases range from between 1.4% to 3% per year, and as long as 7 years to reach the
maximum. The Employer maintains that the current five-year progression with 4.8% annual increases is already above the market comparators, and should therefore remain status quo.
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56. I accept the Employer’s argument that in the circumstances before me
a transition from a five-year to a two-year wage progression would constitute a breakthrough in a first collective agreement. However, I also find that this is an area in which Local 113 could be expected to achieve some gain. The
five-year progression for CSC employees is long compared to the bulk of the TTC’s unionized employees. The Union achieved a 1-year reduction in the progression through the steps in its first agreement covering the Wheel-Trans
OCT employees, and I find that a similar reduction here reasonably balances the parties’ interests and reflects what the Union would likely achieve in a free collective bargaining environment.
I therefore direct that wage schedule applicable to CSC employees to be included in the collective agreement shall be
the existing wage schedule compressed to four equal steps (and subject to the general increases awarded below).
57. As noted above, the parties are relatively close with respect to the appropriate general increases for the period since certification of the CSC bargaining unit, albeit for different reasons. The key difference in the parties’
respective approaches to the issue relates to how to characterize increases that were given the CSC employees during the period following certification and up to the date of this award. Local 113 agrees that these increases, which
in fact track the increases granted to the majority of its members under the Blue Book (operators in particular) during this period, were appropriate, and seeks to have me award those increases retroactively while recognizing that
the Employer has already paid them. This position is consistent with the Union’s view that the increases should replicate the increases under the Blue Book. This is the only provision of the collective agreement which Local 113
seeks to have operate retroactively. 58. The TTC does not agree that retroactive increases should form part of
this award, and disputes that the increases were granted in replication of the increases under the Blue Book. Rather, those increases were granted in accordance with the statutory freeze following certification and followed a
broader trend. 59. Given that both parties agree that the increases granted during the
statutory freeze period were appropriate, and given that awarding them as part of this collective agreement will have no practical implications for employees, I decline to award them on a retroactive basis. Instead, those
increases set the base wage rates upon which the increases awarded here will operate. For the purpose of clarity, those increases were as follows:
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August 30, 2015-March 31, 2016: 0.5% + one time 1.5% lump sum payment (prorated);
April 1, 2016-March 31, 2017: 1.75%
April 1, 2017-March 31, 2018: 2.25% 60. For the period covered by this award, Local 113 seeks increases of 2%
per year of the collective agreement, recognizing that the increase for the first year has already been partially paid out, as set out above. The TTC proposal, which reflects its proposal that wages are not retroactive and that the
collective agreement carry an August 20, 2019 expiry date, seeks to replicate the increases in the collective agreements between CUPE and the City, which it argues reflect the general trend with the City of Toronto. Its proposed
increases are:
August 21, 2017-0.75%
February 21, 2018-0.5% August 21, 2018-0.75% February 21, 2019-0.5%
61. Having reviewed the general increases in the comparator agreements provided to me by the parties, and in light of the other financial gains achieved
by Local 113 in this award, I am satisfied that the quantum of increases proposed by the TTC are generally reasonable, subject to altering the schedule of increases to reflect the date of this award.
I therefore award the following general increases to the wage grid for the CSC employees, as amended above to a four-step
progression: [date of this award]-0.75%
[6 months from date of award]-0.5% [12 months from date of award]-0.75% [18 months from date of award]-0.5%
62. Local 113 also proposed the incorporation of a job evaluation program from the Blue Book that was designed 48 years ago to capture the work of
operators, fare collectors and maintenance workers, among other work. The TTC opposes this proposal and maintains that it is unnecessary and inappropriate.
63. The parties have now reached an agreement on the appropriateness of the current wage grid and classifications coming into the collective agreement
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(there was initially a dispute about one classification but that dispute was subsequently resolved). There is nothing in the materials before me to
establish that there is a current need for a job evaluation program applicable to the CSC. In the event that such a need arises, I find that the parties should have an opportunity to negotiate an appropriate plan at that time, and would
not therefore award such a plan at this time. Vacations
64. The parties proposed similar language with respect to vacation entitlement, including the quantum per years of service, eligibility, vacation
pay and vacation postponement. However, Local 113 sought the inclusion of averaging language use for the calculation of vacation pay and a vacation pay in advance provision, both which are based on the provisions in the Blue Book.
The TTC opposed these provisions on the grounds that they reflect features of scheduling and compensation of crews under the Blue Book that are simply inapplicable to the employees in the CSC. I accept the TTC’s submission in
this regard. The TTC’s proposal also included a provision for a pro-rated vacation entitlement for part-time employees and vacation pay in accordance with the Employment Standards Act. Subject to its opposition to the continued
use of part-time employees, Local 113 did not object to the TTC’s part-time vacation proposal.
I therefore award that the vacation entitlement provision found at pages 68-70 of the TTCs brief shall form part of the collective agreement.
65. The remaining dispute between the parties concerning vacation relates to vacation selection. Local 113 has proposed the inclusion of Vacation
Selection language in the collective agreement with reference to detailed regulations based on regulations applicable to groups covered by the Blue Book. Included in proposal is language related to the use of spares, which in
turn relates to Local 113’s proposal to phase out the use of part-time employees. The TTC has proposed no language related to vacation selection, and relies on the fact that each department within the CSC has its own
vacation selection process which it asserts is working well and requires no further regulation. To incorporate the cumbersome vacation selection process from the larger unit into the current collective agreement would, argues the
TTC, be excessively bureaucratic and unnecessary. The TTC is not, however, opposed to formalizing the process so that employees will have stability and predictability in scheduling vacations, provided the process is tailored to the
needs of the department.
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66. Given the parties’ respective interests, it is appropriate that vacation selection be formalized in regulations, as Local 113 has achieved with the
other groups covered by the Blue Book. However, I agree with the TTC that the specific regulations proposed by Local 113 do not appear to be based on the specific needs of the CSC (and in any case refer to the use of “spares”
which I have not awarded).
The issue of vacation selection is therefore remitted to the
parties, and in accordance with s.10(3) of the Act, I shall remain seized in the event the parties are not able to reach an agreement.
Statutory and designated holidays/floater days and Religious Holiday Accommodation
67. Local 113 has proposed a statutory and designated holiday provision that essentially replicates the entitlement of operators under the Blue Book.
Local 113 maintains that the principle of replication supports its proposal. The TTC has proposed a simplified provision that is less prescriptive in terms of procedure for allocating statutory holidays, and that does not include
designated “Birthday” and “Floater Day” holidays. The TTC has instead made separate proposals allocating 1 and 2 floater days, respectively, to part-time and full-time employees, in addition to a religious holiday accommodation
provision. The TTC has also proposed language to address employees who are absent due to occupational injury and/or in receipt of WSIB benefits.
68. I am satisfied that this is an instance where the Blue Book provisions are the product of a mature bargaining relationship developed in a context that is distinguishable from the CSC. The TTC’s proposal provides CSC
employees with benefits that are materially better than the statutory minimums but are more consistent with the nature of a first collective agreement.
I therefore award that the proposals for Statutory and Designated Holidays, Floater Days and Religious Holiday
Accommodation found at pages 77-84 of the TTC’s brief shall form part of the collective agreement.
Health Services 69. With the exception of the employer obligation to pay the Ontario Health
Premium on behalf of employees, which is dealt with below, the parties have made comparable health services proposals, including Healthcare Plan and Dental Plan. Local 113’s proposal replicates the provisions of the Blue Book,
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whereas the TTC’s proposal replicates the language found in its most recent first collective agreement with CUPE, Local 5089. On the basis of the materials
before me, and subject to the provision below for the Ontario Health Premium, I am satisfied that the TTC proposal provides the same substantial benefits as are provided to employees of the TTC generally.
I therefore award that the TTC’s Healthcare Plan proposal set out at pages 87-88 of its brief shall form part of the collective
agreement.
Ontario Health Premium 70. Local 113 seeks to have the TTC pay for the annual Ontario Health
Premium, and has proposed to replicate the provision in the Blue Book for this benefit. Currently, the TTC does not pay the Ontario Health Premium for employees in the CSC. The TTC’s obligation to pay this premium for Local
113’s other members was the subject of protracted litigation between the parties, in which Local 113 successfully established at arbitration that pre-existing language in its agreement applied to the Ontario Health Premium
when it was introduced in 2004. That decision was upheld on judicial review, and the TTC was unsuccessful on appeal. The TTC argues that given its historical opposition to the application of what it believed was a defunct
provision to the premium introduced in 2004, it is not a provision it would have freely bargained. The TTC further notes that the premium will cost it approximately $900 per employee per year, and would represent a further
wage increase of approximately 1.4%. 71. I am satisfied that in all the circumstances, it is appropriate to award
payment of the Ontario Health Premium in this first collective agreement. In the absence of such an award, the CSC bargaining unit would be the only unionized group at the TTC that did not enjoy this benefit. Further, in the most
recent interest arbitration award addressing a newly organized group and first collective agreement at the TTC, the Transit Enforcement Officers, Arbitrator Kaplan also awarded a provision requiring that the Employer assume
responsibility for paying the premium effective the date of his award. However, I would not order the precise language found in the Blue Book, as I do not believe that the parties would reasonably have reached such an
agreement given the parties’ history concerning this provision.
I therefore award that the collective agreement shall include
Local 113’s proposal with respect to payment of the OHP, save that references to payment shall be to payment of the OHP:
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Sickness
72. The parties’ proposals with respect to Sickness were substantially the same. The TTC’s proposal updated references to current nomenclature, to which Local 113 did not object, and removed a paragraph addressing
accommodation of disabled employees into vacant positions in the CSC. Local 113 maintained that this provision should be included, although I was not provided with any clear articulation of what this provision added to the general
duty to accommodate. 73. The disagreement on which the parties focussed was the time line for
submitting applications for SBA benefits. The TTC proposal provides for 7 days with a possible extension. Local 113 sought to replicate the 60 days provided for under the Blue Book provision. This issue relates to the TTC’s broader
concern regarding absenteeism and its ability to manage the attendance issues at the CSC identified above. Although the parties did not agree, both parties proposed a 30-day time limit as an alternative to the other’s position.
I am satisfied that a 30-day time limit with possible extension by appeal to the SBA Board recognizes the TTC’s interest in managing its attendance issues more efficiently and constitutes a reasonable compromise.
I therefore award that the TTC’s proposal with respect to Sickness at pages 93-94 of its brief shall form part of the
collective agreement, save that the reference to “7 calendar days” for making application for SBA benefits shall be replaced with “30 calendar days”.
74. In conjunction with its Sickness provision, Local 113 also proposed provisions, mirroring the provisions of the Blue Book, related to WSIB
Applications and SBA advances and WSIB Top-Up. The TTC argues that these provisions are designed to address the needs of front-line workers who may be assaulted by the public or witness suicides. While I agree with Local 113
that the proposed provisions may have broader application, I accept the TTC’s position that these provisions arise from a context that is distinct from the CSC, and therefore decline to award them.
Employee and Family Assistance Program (EFAP)
75. Both parties agree that the CSC employees should receive the same EFAP benefit as all other unionized employees at the TTC, but do not agree on the language that best captures that entitlement. Local 113 proposes the Blue
Book language and the TTC proposes language that replicates the provision that was incorporated into the most recent first collective agreement with CUPE, Local 5089. The TTC points out that the Blue Book provision includes
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references to expired provisions, which do not make sense in the context of a fresh first collective agreement. I agree that the employer proposal is more
consistent with the nature of a first collective agreement.
I therefore award that the TTC’s EFAP proposal found at page
125 of its brief shall form part of the collective agreement. Contracting Out
76. The TTC has proposed no language restricting contracting out of bargaining unit work, arguing that there is no demonstrated concern to be
addressed with this provision, and no current plans to contract out the work of the CSC.
77. Local 113 has proposed two provisions. The first is the contracting out language found in the general provisions of the Blue Book, which protects against layoffs or terminations in the event of a contracting out. The second
is the adoption of a time-limited prohibition on contracting out for the life of the agreement, found in a letter appended to the Blue Book. Local 113 argues that it has consistently pursued, and that the Blue Book demonstrates a trend
toward, increased job security protection, and that such protection would be a priority in free collective bargaining. While the TTC opposes both restrictions on its ability to contract out, it has provided no compelling reason that I ought
not to award the more limited contracting out protection found in the general provisions of the Blue Book. With respect to the letter of understanding, however, the TTC has described the trade-offs that were made in the course
of agreeing to that letter, none of which occurred in the context of bargaining the current agreement. In the circumstances, I accept the first, but not the second of Local 113’s proposals, subject to removing the sentence referring
to trade licences which does not apply to the CSC employees.
I therefore award that the following provision shall form part
of the collective agreement:
The TTC shall ensure that employees shall not be laid off or
terminated as a direct result of contracting out of work which is normally performed by members of the Bargaining Unit.
Health and Safety 78. Local 113 has sought to replicate the joint health and safety process
under the Blue Book, incorporating historic agreements between the parties, whereas the TTC has proposed a simple provision referencing the provisions of the Occupational Health and Safety Act. There is currently an ongoing
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initiative to streamline guidelines for the Joint Health and Safety Committees at the TTC. The TTC proposal is consistent with the nature of a first collective
agreement, and is therefore preferred, and does not preclude the parties considering alternatives going forward.
I therefore award that the TTC’s proposed health and safety provision found at page 127 of its brief shall form part of the collective agreement.
Day’s Work and Week’s Work
79. Consistent with this award concerning hours of work and the use of part-time employees, I find that the TTC’s proposal concerning Day’s Work and Week’s Work is appropriate.
I therefore award that the Day’s Work and Week’s Work provision found at page 147 of the TTC’s brief shall form part of
the collective agreement. Sunday Premium
80. All of Local 113’s members, and all but one of the other bargaining units at the TTC, receive a Sunday Premium. The TTC argues that this was a benefit
obtained by Local 113 for its members many years ago, before work on Sundays was common. The current trend, it argues, is toward eliminating such premiums, and points to the 2017 OPSEU and LCBO award referenced above,
in which Sunday premiums were eliminated. The TTC argues that the elimination of Sunday premiums was a priority for the LCBO since it was their third busiest day. In the alternative the TTC submits that for the same reasons
it articulated with respect to shift premiums, the benefit should be limited to full-time employees, with no pyramiding of benefits.
81. It is not possible to discern all of the considerations or agreements between the parties that underlie the elimination of Sunday premiums in the LCBO award, but I am satisfied that the circumstances in this case are
different. The norm for unionized groups at the TTC continues to support the payment of Sunday premiums, although for the reasons put forward by the TTC I agree that it should be restricted to full time employees. On the basis
of the representations made before me, there are only a relatively small number of full-time employees who will be affected by this, and the financial implications of the extension of this benefit are therefore limited, in stark
contrast to the circumstances at the LCBO.
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I therefore award that the following provision shall form part of the collective agreement:
The TTC shall pay one and one-quarter times the basic rate for all regular Sunday work up to seven hours. Work beyond seven
hours is to be paid at the rate of one and one-half times the basic rate.
Paid Lunch 82. In conjunction with its proposal to increase the daily guarantee and
weekly hours of work, Local 113 seeks a provision for a paid lunch. In the absence of the increased hours and pay, however, Local 113 did not seek to reduce the current practice at the CSC, where employees receive a 1-hour
unpaid lunch. I have concluded that a transition to an 8-hour work day with a half-hour paid lunch would constitute a breakthrough in this collective agreement, and therefore decline to award a paid lunch.
Miscellaneous
83. Local 113 proposed replicating certain provisions from the Blue Book which do not appear to address any existing issue in the CSC, and for which
the TTC did not make any counter-proposal. For the reasons articulated at the outset of this award, I am satisfied that there is no compelling basis for including Local 113’s “Supervisor Not to Perform Bargaining Unit Work”,
“Volunteer Work” or “Present Working Conditions” provisions in a stand-alone collective agreement applicable to the CSC at this time. Further, with the exception of the appendices referred to above, I do not award the inclusion of
any further appendices or time-limited agreements from the Blue Book. Conclusion
In accordance with section 10(3) of the Act, I remain seized to deal with any disputes related to the implementation of this award.
Dated at Toronto, Ontario, this 3rd day of August 2017.
__________________ Eli A. Gedalof
Sole Arbitrator
IN THE MATTER OF AN ARBITRATION PURSUANT TO THE TORONTO TRANSIT COMMISSION LABOUR
DISPUTES RESOLUTION ACT, 2011 BETWEEN:
TORONTO TRANSIT COMMISSION
(the Employer”)
- and -
AMALGAMATED TRANSIT UNION, LOCAL 113
(the “Union”)
(Re. First Collective Agreement for a Bargaining Unit
Certified in OLRB Case No. 1147-15-R) Before: Eli A. Gedalof, Sole Arbitrator
AWARD
1. In accordance with my decision at paragraph at 81 of my August 3, 2017 award that payment of the Sunday Premium should be restricted to full-time
employees, and having regard to the parties’ agreement that the provision awarded should clearly reflect its limited application and that I remain seized with respect to issues arising from the implementation of my award, the
Sunday Premium provision to be included in the collective agreement is hereby amended as follows:
The TTC shall pay full-time employees one and one-quarter times the basic rate for all regular Sunday work up to seven hours.
Work beyond seven hours is to be paid at the rate of one and one-half times the basic rate.
2. I remain seized. Dated at Toronto, Ontario, this 14th day of August 2017.
__________________ Eli A. Gedalof Sole Arbitrator
