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HomeMy WebLinkAbout2015-2869.Policy.19-07-19.Decision 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#2015-2869 UNION#95-15-COR IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Amalgamated Transit Union – Local 1587 (Policy) Union - and - The Crown in Right of Ontario (Metrolinx) Employer BEFORE Ian Anderson Arbitrator FOR THE UNION Dean Ardron Ursel Phillips Fellows Hopkinson LLP Counsel FOR THE EMPLOYER Michael Kennedy Hicks Morley Hamilton Stewart Storie LLP Counsel HEARING June 26, 2019 - 2 - Decision [1] This is an application for interim relief brought by the Union. [2] Both parties agree the party seeking interim relief must demonstrate: (1) it has an arguable case on the merits; and (2) that the balance of harm or convenience favours granting interim relief. [3] The underlying grievance relates to “crew selection” by drivers who work for the Employer. Crew selection determines a driver’s days off, start and finish times and locations, hours of work and hours of pay. Such selections have a significant impact on the drivers’ lives. Crew selection is done on the basis of seniority. Historically, a “standard sign-up system” was used. The Employer has introduced a new electronic, web based system, “Bid Web”, on a trial basis. The grievance alleges the Employer is precluded from doing so without the agreement of the Union. [4] Each calendar year is divided into five to seven “board periods”. During each board period, drivers sign-up for the crew(s) and shifts they will work for the next board period. [5] Under the standard sign-up system, sign-ups occur on a particular selection day. In the weeks prior to the selection day, the Employer physically posts run guides and crew rosters detailing the shifts which can be selected in the next board period. Drivers are able to consult these in advance of the selection day. [6] The selection day had three sign-up time periods for each work location. Drivers were assigned to time periods in order of seniority, with approximately ten drivers assigned to each period. Drivers in each time period make their selections in order of seniority. Each driver has ten minutes to make his/her selection. When making his/her selection, a driver is aware of which crews have already been selected by more senior drivers and which ones remain available. Once a driver selects, his/her selection is confirmed on the spot. A driver may attend in person on call in. A driver also has the option of submitting a paper slip in advance on which his/her presences are recorded. [7] Under the electronic sign-up system, there are bid “rounds” which occur on a particular day. Run guides and crew rosters are available for review one week - 3 - prior to that day. Similar to the standard sign-up system, approximately ten drivers were assigned to each round in order of seniority. Drivers sign in through the web to record their shift preferences. Drivers are not required to submit their preferences in order of seniority or even on any particular day, but they must submit them prior to the closing time for the round to which they are assigned. [8] There is no dispute that the standard sign-up system continues to operate and be available for drivers to use. The Union, however, states the forms required to use the standard sign-up system are now difficult or impossible to obtain and drivers are pressured to make use of the electronic sign-up system instead. [9] The Union also states the electronic sign-up system is problematic compared to the standard sign-up system. Updated rosters are not printed until the end of each round. That is, more junior drivers must record their preferences without knowing what crews have already been selected by more senior drivers. While a driver may enter multiple alternative preferences to guard against the possibility that their preferred crews have already been selected, this is more onerous and, the Union asserts, stressful. Further, drivers only receive a receipt or confirmation of their bid if they request one when entering their bid in the electronic sign-up system. In addition, the Employer has declined to give copies of those receipts to Union representatives without specific individual consent of the drivers involved. [10] The Union argues the continued use of the electronic sign-up system will therefore result in crew selections which do not reflect the true preferences of the drivers, in contrast with the standard sign-up system which does. This is the principal harm on which the Union relies in support of its argument. It argues if the grievance succeeds on the merits, and it is determined the Employer’s unilateral introduction of the electronic sign-up system was a breach of the collective agreement, it will not be possible to address this harm with respect to board periods which have expired and it would be an administrative nightmare to attempt to address it with respect to the current board period. [11] In my view, the Union’s argument depends essentially on two propositions. First, while the standard sign-up system continues to operate in parallel with the electronic sign-up system, in practice it is no longer available to some of the drivers: the necessary forms are not available and drivers are pressured to use the electronic sign-up system. Second, to the extent drivers have access to and use the standard sign-up system, the electronic sign-up system has negatively changed their experience: junior drivers no longer know the choices of senior - 4 - drivers at the time they make their own selections. If these propositions are not true, then a driver concerned the electronic sign-up system will not accurately capture his/her preferences can simply continue to make use of the standard sign-up system. [12] The Employer’s declarations and written representations state: “The standard sign-up system remains in place, completely unchanged, and operates in harmony with the electronic sign-up system.” Further, the Employer’s materials indicate that it “currently has no plans to replace the standard sign-up system with the electronic sign-up system or to otherwise bring the Test Program to an end.” The Employer’s oral representations were to the same effect. To the extent that the Employer’s written materials were unclear with respect to concerns raised by the Union, during the hearing of the motion the Employer represented that they were or would be addressed. [13] More particularly, with respect to the concern that junior drivers must make their selections without knowing the choices of senior drivers, the Employer’s materials indicate: Further, the Bid Web program operates in a staggered manner to ensure that all bids submitted through the standard sign-up system are properly processed and accounted for. Specifically, the Bid Web program will "pause" automatically whenever It arrives at a driver who did not enter a bid through the portal on Bid Web. The program will stay on "pause" while a supervisor checks if that driver entered a bid through the standard sign-up system, and will remain on "pause" until the supervisor manually assigns the driver's work in accordance with the standard sign-up system's regular procedures. Only after the supervisor has so assigned the driver in question will the Bid Web program continue to run again. The Bid Web program will then "close" the round and proceed to the next one after all drivers' work assignments have been processed for that particular round. [14] During the hearing, the Employer confirmed that prior to requiring a driver to submit his/her bid through the standard sign-up system, the supervisor can and will advise the driver of the choices of more senior drivers. Thus, a junior driver who does not wish to submit multiple alternative preferences but wishes to know the choices of more senior drivers at the time of making his/her bid, may choose to use the standard sign-up system instead of the electronic sign-up system. [15] The Employer’s written materials state “drivers have simply been given the option of using the electronic sign-up system - none have been compelled to use the electronic sign-up system or required to use the standard sign-up system” - 5 - (emphasis provided by the Employer). More particularly, in response to the Union’s evidence that one driver felt pressured to use the electronic sign-up system rather than the standard sign-up system in relation to signing up for one board period in September, 2018, the Employer states it has no knowledge of the incident “but re-iterates that all drivers are free to use the standard sign-up system instead of the electronic sign-up system if that is their preference.” [16] With respect to the Union’s concerns that necessary forms were not available to use the standard sign-up system and that copies of the receipts from the electronic sign-up system indicating drivers’ picks were not being provided to Union representatives, the Employer indicated during the hearing that they would be. [17] Based on the Employer’s representations that the standard sign-up system continues to be available, that it has or would address the issues raised by the Union, and that it has no plans to end the standard sign-up system, I am satisfied the principal harm relied upon by the Union in support of its application for interim relief is not made out. Of course, should there be a material change to these circumstances, the Union may renew its application for interim relief. Presumably, the Employer will want to ensure that its supervisors continue to permit use of the standard sign-up system, without impediment, in order to minimize the possibility of such an application. Further, if the Employer were to decide it was going to end the standard sign-up system prior to a final determination of the grievance on the merits, I would expect the Employer would give the Union reasonable notice of its intention to do so. [18] The Union identifies certain isolated errors which occurred through the use of the electronic sign-up system. In each and every such instance, the Union acknowledges the errors once identified were corrected. The Union argues, however, that the errors “unfairly place the burden on an employee to monitor and seek to enforce his/her seniority rights.” I am not satisfied that these errors are more endemic to the electronic sign-up system than the standard sign-up system. Accordingly, I give little weight to this factor. [19] The Union says the Employer’s unilateral introduction of the electronic sign-up system in breach of the collective agreement sends a message to bargaining unit members that the Employer can do what it wants. This, the Union asserts, is bad for labour relations and weighs in its favour when considering the balance of harm. - 6 - [20] In my view, this argument is predicated upon the assumption that there has been a breach of the collective agreement. That is the very issue to be determined following the hearing on the merits. The harm on which the Union relies in support of interim relief, therefore, can only be that an alleged breach of the collective agreement sends a message to bargaining unit members that the Employer can do what it wants. This is at least counter balanced by the labour relations and operational harm to the Employer if it were prevented on an interim basis from exercising what it alleges are its rights under the collective agreement. I would not, therefore, give weight to this part of the Union’s argument. [21] With respect to the harm it would incur if the interim relief were granted, the Employer points to its investment in creating and continuing to review and improve the electronic sign-up system. The Union argues an interim stay does not result in this investment being wasted, since if the Employer wins on the merits it can proceed. In my view, this argument ignores the investment in training of drivers and development of expertise in those responsible for administering the system. Experience shows such investments depreciate rapidly if not used. I conclude the Employer would suffer real harm if a stay were granted. [22] Accordingly, in my view the balance of harm favours the Employer. Given this conclusion, I need not determine whether the Union has an arguable case on the merits. [23] The Union’s application for interim relief is dismissed. Dated at Toronto, Ontario this 19th day of July, 2019. “Ian Anderson” Ian Anderson, Arbitrator