Three-year agreement between TTC, unions announced
October 08, 2008
The Toronto Transit Commission, today, received arbitrator Kevin Burkett’s decision on a binding three-year contract between the TTC and its unions, retroactive to April 1, 2008.
The settlement matches everything that was agreed to on April 20 this year, except for an additional $0.10 per hour increase for skilled trades workers. Wage increases will rise 3% in each year of the contract, which will expire on March 31, 2011. Benefit improvements and WSIB top-ups match what was agreed to, as well. The cost of the contract is estimated to be $164 million over the three-year life of the contract.
On April 20 of this year, the TTC and its unions agreed to a tentative contract, subject to ratification. On April 25, Amalgamated Transit Union Local 113 announced that the majority of voting members rejected the agreement. A legal strike was announced for midnight. On Sunday, April 27, the Ontario Legislature convened an emergency session and passed back-to-work legislation and announced both parties would be subject to binding arbitration. TTC service resumed by 5 p.m. April 27, ending the 1-½ day strike.
Since that time, the TTC met three times with Mr. Burkett, laying out its position with respect to affordability and other non-monetary issues. Mr. Burkett sought, and received, time extensions from both parties as he worked through the complex issues before him. The TTC looks forward to moving ahead now with aggressive and exciting transit projects for the people of Toronto.
IN THE MATTER OF AN ARBITRATION BETWEEN: TORONTO TRANSIT COMMISSION ("the Employer")
AND: AMALGAMATED TRANSIT UNION, LOCAL 113 ("the Union")
IN THE MATTER OF:
RENEWAL COLLECTIVE AGREEMENT
SOLE ARBITRATOR:
Kevin M. Burkett
APPEARANCES FOR THE EMPLOYER:
Christopher Riggs - Counsel
Dolores Barbini - Counsel
Jonathan Maier - Hicks Morley
Michelle A. Alton - Hicks Morley
Gary Webster - Chief General Manager
Scott Blakey - Executive Director, Human Resources
Kirsten Watson - Senior Director, Human Resources
Gemma Piemontese - Director, Employee Relations
Valerie Albanese - Employee Relations Consultant
Dave Dixon - Deputy General Manager - Rail
APPEARANCES FOR THE UNION:
Ian Fellows - Counsel
Dean Ardron - Counsel
Bob Kinnear - President/Business Agent
Kevin Morton - Executive Vice-President
Les Moore - Secretary-Treasurer
Paul Callaghan - Assistant Business Agent – Maintenance
Paul Prosser - Assistant Business Agent – Transportation
Jim Boyle - Executive Board Member – Birchmont/Malvern
Bill Chrisp - Board Member at Large (Maintenance)
Pino D’Armiento - Executive Board Member – Plant Department
William Fowlie - Executive Board Member – Automotive (Garages)
Frank Grimaldi - Executive Board Member – Arrow Road/Queensway
Ian MacKay - Executive Board Member – Wilson Bus/Subway
Bill Merlin - Executive Board Member – Hillcrest Complex
Philip Quibell - Executive Board Member – Eglinton/Bloor-Danforth/SRT
Rocco Signorile -Executive Board Member – Roncesvalles/Russell/W-Trans/Veolia
Clarke Smith - Executive Board Member – Collector/Clerical/TCT Clerks
Hearing held in Toronto, Ontario on September 6, 2008 -
I have been appointed under the Toronto Public Transit Service Resumption Act 2008 to serve as mediator/arbitrator in respect of a renewal collective agreement to the collective agreement between the parties that expired March 31, 2008. There is no dispute with respect to my authority in this regard.
By way of general background, the negotiating committees entered into a 99-page Memorandum of Agreement dated April 20, 2008, covering the three-year term from April 1, 2008 to March 31, 2011, that was made subject to the ratification of their respective principals. The Union's Executive Board recommended acceptance. However, seven of the sixteen members of the Union's Executive Board did not sign the April 20, 2008 Memorandum of Agreement and recommended that it be rejected. It is to be noted that the six members of the Union's Executive Board representing the maintenance department, along with the vice president of the local union responsible for dealing with benefit issues, comprised the group of abstaining members of the Executive Board. Finally, it is to be noted that approximately 42% of the bargaining unit work in the maintenance department. The remaining 58% of the bargaining unit work in operations. A Union membership vote was conducted on April 25, 2008 with, to repeat, these seven members of the Union's Executive Board urging the membership to disregard the recommendation of the Executive Board and reject the Memorandum of Agreement. The membership rejected the terms of the Memorandum of Agreement by a margin of 65% to 35%. A strike commenced on the evening of April 25, 2008 that was ended two days later, on April 27, 2008, with the passage of the Toronto Public Transit Service Resumption Act 2008.
Mediation was conducted on May 25 and 27, 2008. The Union identified a number of issues to be addressed within the three-year term of the Memorandum of Agreement. While the Employer held to the provisions of the Memorandum over its three-year term, it indicated a willingness to make certain improvements to the package over a four-year term. The Union was adamant in its refusal to consider other than the three-year term. Not surprisingly, the mediation proved unsuccessful. Hence, an arbitration hearing was convened on Saturday, September 6, 2008.
Positions of the Parties
The Union, citing the replication principle, argues that where a Memorandum of Agreement is rejected, the parties, absent statutory intervention as in this case, return to the bargaining table in order to "tweak" the Memorandum to make it more acceptable to the union membership. This is especially true, it is argued, where seven members of the Union's 16-member bargaining committee, including the full contingent of maintenance representatives, have refused to sign the Memorandum. In these circumstances, it is further argued, the Employer must be found to have taken a significant risk in tabling a final offer without a unanimous or close to unanimous recommendation for acceptance and must have done so in the knowledge that if the Memorandum was rejected, it would have to return to the bargaining table. The Union submits that whereas a rejected Memorandum of Agreement that has been unanimously recommended by a union's bargaining committee may constitute evidence of what those most familiar with the economic parameters that govern the relationship consider fair and reasonable in the prevailing circumstances, a rejected Memorandum of Agreement that has been endorsed by only half plus one of a union's bargaining committee cannot be relied upon as evidence of a fair and reasonable resolution. Accordingly, it is reiterated that, in the circumstances of this case, the replication principle requires a "tweaking" of the terms of the Memorandum in order to make it more acceptable to the Union membership.
The position taken by the Union, therefore, is that the predecessor collective agreement be amended in accord with the Memorandum of Agreement dated April 20, 2008, with the following additions and modifications:
1. remove the "unforeseen, extraordinary event" test from the eligibility for WSIB top-up benefits and accordingly eliminate the committee making determinations pursuant to that test;
2. bring forward to the date of the award the implementation of all improvements in benefits set out in the April 20, 2008 Memorandum of Agreement;
3. increase the skilled trades allowance from $0.10 per hour to $0.50 per hour, effective the date of the award. (The Memorandum of Agreement provided for an increase from $0.10 per hour to $0.25 per hour); and
4. with respect to warranty work, add the following to the collective agreement: "No warranty work will be assigned to non-bargaining unit personnel" or, in the alternative, "Warranty work will only be performed away from the Employer's premises" or, in the further alternative, "Any non-TTC person who attends at the workplace to perform warranty work will be accompanied by a bargaining unit member."
Items 1 and 2 (WSIB top-up benefit and implementation date of benefit improvements) are applicable to all bargaining unit members. Items 3 and 4 (skilled trade premium and warranty work) are applicable to maintenance department employees.
The Employer argues for a four-year collective agreement based upon the Memorandum of Agreement with an additional 3% across-the-board salary increase and some minor benefit improvements in the fourth year. The Employer maintains that I have the authority to extend the term to four years and that the application of the mandatory criteria set out in subsection 15(2) of the Toronto Public Transit Service Resumption Act 2008 supports the awarding of a four-year agreement. In further support, the Employer argues that a four-year term would provide extended labour peace; would be consistent with emerging trends in the public transit sector; and would be consistent with the principle of replication.
In regard to the replication principle, the Employer maintains that the Memorandum of Agreement constitutes the best evidence of what the parties were prepared to negotiate in free collective bargaining. The Employer disputes that the weight given to the Memorandum must be discounted because certain members of the Union's bargaining committee did not endorse it. The Employer takes the position that under the Union constitution, a majority is required in order to effect a Memorandum, as was the case here, and that once entered into, the weight that it is to be given is not determined having regard to a "sliding scale" based on the number of Executive Board members who have signed. Rather, it is submitted, the Memorandum, consistent with the jurisprudence, serves as the best evidence of a fair and reasonable settlement. Accordingly, the Employer seeks a four-year agreement comprised of the terms of the Memorandum for the period April 1, 2008 to March 31, 2011 with an additional 3% across the board and some minor benefit improvements for the period April 1, 2011 to March 31, 2012.
The Employer argues that none of the Union's additional arbitration proposals should be awarded. None of these proposals, it is submitted, is supported by evidence of demonstrated need and, moreover, they are largely inconsistent with prevailing trends among the comparators in the public transit industry. The Employer maintains that the awarding of any of these proposals would cause "excessive and unnecessary administrative and financial costs."
Discussion
There had been a divergence in the jurisprudence with respect to both the admissibility of a rejected Memorandum of Agreement and, if admissible, the weight to be given to it. However, the award in re: Thames Emergency Medical Services Inc. and OPSEU (2004) 129 LAC (4th) 192 (Burkett) definitively decides these issues. The Board in that case reasoned as follows:
It is also important to remember that interest arbitration is a substitute for free collective bargaining in the limited circumstances where the services supplied by the affected employees are too critical to society at large to risk interruption by strike or lockout. In these limited circumstances, interest arbitration is a substitute for economic sanctions as the final method of dispute resolution. Not surprisingly, it has long been accepted that the overriding objective of interest arbitration must be to replicate, to the greatest extent possible, the result that would otherwise have obtained had the right to strike or lockout not been removed. The issue before us, therefore, ought not to be decided on the basis of abstract statements of legal principle, but rather reference must be had to the manner in which rejected memoranda are dealt with by the parties to free collective bargaining as regulated by the statutory duty to bargain in good faith. As will be seen, under free collective bargaining a rejected memorandum establishes the framework within which post-rejection bargaining takes place.
One of the primary arguments advanced in support of the inadmissibility of a rejected memorandum is that the bargaining committee or agent cannot bind the principal. This is correct in a technical sense; however, as we have emphasized, collective bargaining is regulated by a statutory duty that establishes narrowing parameters as the bargaining progresses. The principal must be presumed to understand that a position once tabled by its bargaining committee and responded to becomes interwoven into the fabric of the bargaining. It is not surprising, therefore, that the rejection of a memorandum of settlement under free collective bargaining is not viewed as a signal to recommence bargaining afresh. Rather, the bargaining that follows a rejection of a memorandum of settlement is in the nature of a problem-solving exercise designed to "tweak" the terms of settlement in a manner that preserves the essential bargain while at the same time facilitating a reconsideration by the principals. Indeed, a party that sought to commence bargaining afresh following the rejection of a memorandum of settlement would leave itself open to a bad faith bargaining complaint. Conversely, a party that had put its best position forward in order to achieve a tentative settlement, only to have that settlement rejected by the other side, would, absent more, be immune from a finding of bad faith if it adopted the terms of the rejected memorandum as its firm and final position. The reality is that in free collective bargaining, the rejected memorandum remains front and centre. A party is not free to adopt any bargaining position it chooses following the rejection of a memorandum of settlement. Although it does not constitute a legally binding document, the memorandum establishes the parameters for the bargaining that follows the rejection, notwithstanding the fact that it was entered into by the bargaining committees acting as agents for the principals. Accordingly, if the primary objective of interest arbitration is to replicate free collective bargaining, as it is, a rejected memorandum of settlement must be admitted as the product of the prior good faith efforts of the parties to reach agreement.
As for the argument that the admission of the memorandum would undermine the without prejudice/confidential nature of collective bargaining, the fact is that the purpose of negotiating on a confidential/without prejudice basis is to protect the process from the intrusion of outside influence and to allow the parties to table "best" positions in the knowledge that if a "best" position does not advance the bargaining, it can be withdrawn. Once a tentative agreement is reached, however, the purpose of without prejudice/confidential negotiation has been satisfied and each side knows that a signed memorandum (which is a with prejudice/public document), attesting to their preparedness to recommend its contents, effectively waives any privilege that may have existed through the bargaining process. This argument, in favour of the inadmissibility of a rejected memorandum, therefore, ignores the reality of what a signed memorandum of settlement is and, as well, ignores the replication principle that underpins the interest arbitration process.
The policy reason in support of the inadmissibility of a rejected memorandum of settlement advanced by both arbitrator Teplitsky (re: Peel Board of Education (supra)) and counsel John Murray (Unratified Settlements, Labour Arbitration Yearbook, Butterworth's, 1992) is that its inadmissibility prevents it from becoming the starting point from which a subsequent interest arbitration award is crafted. Their thinking is that if a rejected memorandum is found to be inadmissible, there is no chance of it becoming the "floor," such that the principals must fear that by rejecting the memorandum they could do worse which, in turn, will have the positive effect of making rejection of the memorandum less likely. Their reasoning as to cause and effect is correct. However, at one and the same time, a ruling of inadmissibility destroys the framework for settlement mandated by the statutory duty to bargain in good faith (as the practical effect of inadmissibility is to render null and void the prior bargaining that produced the memorandum) and disregards any notion of replication (as under free collective bargaining, a rejected memorandum continues to set the parameters for the subsequent bargaining). Apart from the questionable implication arising from this policy position, that failing a ruling of inadmissibility an interest arbitrator is somehow incapable of balancing the issues put before him at the subsequent interest arbitration, this policy consideration ranks much lower in the hierarchy of policy considerations than does the preservation of the good faith bargaining framework and reliance upon the replication model.
Clearly, the rejected Memorandum of Agreement is admissible. The more difficult issue in this case concerns the weight it is to be given. This is so because, whereas usually a rejected Memorandum has been recommended by most, if not all, of a union's bargaining committee, seven of the sixteen members of this Union's bargaining committee refused to sign the Memorandum of Agreement and sought to have it rejected. Indeed, the full complement of the Union's maintenance department representatives refused to sign the Memorandum. The Employer argues that the split in the Union bargaining committee is immaterial and that the Memorandum nevertheless stands as the best evidence of a fair and reasonable outcome.
I disagree. The split in the Union bargaining committee, especially with all the maintenance department representatives dissenting, must render the Memorandum less persuasive as evidence of a fair and reasonable outcome, especially as applied to the maintenance department employees. Furthermore, in the normal course, an employer makes its final offer conditional upon the unanimous or close to unanimous recommendation of a union's bargaining committee. In this case, the Employer was content to take its chances on ratification with almost half of the Union bargaining committee recommending rejection. In these circumstances, the Employer must have understood that there was a strong likelihood of rejection and that, if rejected, there would have to be some modifications to the Memorandum in order to bring about a settlement.
This is not to say, however, that radical or extensive changes to this Memorandum are warranted. This Memorandum, which extends to some 99 pages, was the result of extensive bargaining that covered a myriad of issues. In addition to the administrative issues, many of which are both complicated and compromisory, the Memorandum provides for economic improvements, as follows:
* an annual compounded wage increase of three percent (3%);
* the introduction of a WSIB top-up provision that is available to employees who are injured at work as a result of an unforeseen extraordinary event. This top-up will provide eligible employees with compensation equal to seven percent (7%) of their net average earnings, as determined by the Workplace Safety and Insurance Board;
* an increase in the current skilled trade allowance in Article IV, Section 20 of the Collective Agreement from $0.10 for each regular hour paid to $0.25 for each regular hour paid;
improvements to the coverage and flexibility of certain benefits, including:
* an increase in vision care coverage from $275.00 to $300.00;
* the flexibility of using vision care coverage toward the payment of one routine eye exam to a maximum of $50.00 every two years;
* the flexibility of using vision care coverage toward the payment for corrective vision laser eye surgery;
* an increase in physiotherapy and chiropractic care coverage from $800.00 to $1,000.00. Coverage for each chiropractic visit also increased from $15.00 to $35.00;
* an increase in major restorative dental coverage from 50% of the costs to a maximum of $1,000.00 per person every 12 months to 50% of the costs to a maximum of $2,500.00 per person every 12 months;
* the flexibility of using major restorative dental coverage for dental implants;
* an increase in the scope and coverage of orthodontic benefits from up to 50% of the costs to a lifetime maximum of $3,000.00 per dependent to up to 50% of the costs to a lifetime maximum of $4,000.00 per employee and his and her dependents;
* an increase in the lifetime maximum benefit coverage for insulin pumps from $5,000.00 to $6,600.00;
* the introduction of coverage for smoking cessation products to a lifetime maximum of $300.00;
* an increase in basic group life insurance benefits coverage for all regular employees to age 65, from $35,000.00 to the amount of the employee's basic annual salary effective January 1, 2010;
* a further increase in group life insurance benefits coverage for all regular employees to age 65, from the amount of the employee's basic annual salary to two times the amount of the employee's basic annual salary effective January 1, 2011;
* an increase in accidental death and dismemberment benefits coverage for all regular employees to age 65, from $25,000.00 to two times the amount of the employee's basic annual salary;
* an increase in the current death benefit in the line of duty coverage, from the amount of two times the employee's basic annual salary to the amount of four times the employee's basic annual salary;
* an increase in long term disability benefits coverage from a monthly cap of $2,500.00 to $2,550.00 for claimants who complete the qualifying period on or after January 1, 2011; and
* an additional ad hoc adjustment in long term disability benefits coverage of $50.00 per month to all employees who receive these benefits as of December 31, 2010, not to exceed the monthly cap.
restrictions on the contracting out of bargaining unit work, including:
* a letter of intent that the Commission will not initiate any contracting out of Wheel Trans, bus, SRT, streetcar or subway service during the term of the new collective agreement, unless agreed otherwise;
* the imposition of a $10,000.00 penalty if the Commission violates the applicable contracting out provisions. Under the prior Collective Agreement, the amount of this penalty was fixed at $5,000.00;
* an amendment of Article IV, Section 16 of the Collective Agreement that will give the Union an additional meeting with the Commission to discuss alternatives to the contracting out of maintenance work;
* an amendment of Article IV, Section 16 of the Collective Agreement that will give the Union increased access to information regarding the Commission's Materials and Procurement tender website;
* renewal of the Commission's commitment in Article I, Section 37 of the Collective Agreement that employees shall not be laid off or terminated as a direct result of contracting out work that is normally performed by members of the bargaining unit;
* an agreement that the Commission will meet with the Union to discuss ongoing issues regarding the performance of warranty repair work.
The Memorandum of Agreement also includes a clause providing for an additional wage increase for operators should the wage rates at any of the GTA comparators move ahead of the comparable wage rates here. In addition, there are other improvements to the existing wage progression schedule, shift premium, travel time entitlements, collector shortage allowance, vacation scheduling, clothing and safety vest allowances and the reporting allowance for operators. Finally, the Employer has committed to honour benefit claims from the effective dates set out in the Memorandum even though some of these effective dates have passed.
This Memorandum of Agreement contains an impressive array of economic improvements, including those provisions relating to benefits. As for the timing of benefit improvements, it is not unusual for parties to a collective agreement to stage the implementations of benefit improvements in order to reach an overall agreement, as was done here. Notwithstanding the delayed implementation of some of the benefit improvements, the economic improvements under this Memorandum, taken as a whole, are above normative. Further, the general economic conditions have not markedly changed since the Memorandum of Agreement was entered into. Indeed, if anything, the economy and the economic outlook have worsened. It follows that if the three-year term is maintained, as the Union seeks, the cost implications of any changes that are made must be minimal.
The Employer seeks a four-year term for the reasons already articulated. The Union is adamant that the term must not extend beyond three years. The Union argues that these parties have historically negotiated three-year agreements; that a three-year term best removes collective bargaining from the Union's political cycle (and thereby better insulates the collective bargaining process from the Union's political process); and finally, that the Employer is not offering enough to "buy" a fourth year. Although it is not unusual for parties to a collective agreement to use the mechanism of term to bridge the economic gap between then, the arguments put forward by the Union with respect to term are persuasive. Accordingly, this award will be for a three-year term.
That said, the task at hand is to fashion a fair and equitable award having regard to the statutory factors applied within the context that presents itself here. The context is shaped by the following: firstly, a Memorandum that contains economic provisions, including benefits, that are above normative; secondly, a persuasive rationale for maintaining a three-year term; and finally, because it was the maintenance department representatives who refused to sign the Memorandum and campaigned against it, the need to focus upon the Memorandum as it applies to maintenance department employees as, in all likelihood, the parties themselves would have done had they been left to their own devices.
Given the attention that must be paid to the Memorandum as it pertains to maintenance employees, the Letter of Understanding with respect to warranty work requires some discussion. The warranty letter, which has application to the maintenance department, formed part of the Memorandum of Agreement that was entered into on April 20, 2008. However, shortly thereafter, the Union advised the Employer that the Union might seek to have the letter removed from the Memorandum because it had not been negotiated by the maintenance representatives and was being used as a reason to oppose ratification. The Employer agreed that if the Union sought its removal, it could be removed. The Union advised the Employer in July 2008 that it wished to have the letter removed and the Employer consented. The Union has advised that it found the letter unacceptable because:
1. it provides insufficient protection against bargaining unit work being performed by non-bargaining unit persons;
2. to the extent that protections exist, they relate to one contractor only; and
3. the letter explicitly provides for the performance of bargaining unit work by non-bargaining unit persons in paragraph 6.
The letter, as it appeared in the Memorandum of Agreement, read as follows:
April 1, 2008
Mr. Les Moore
Amalgamated Transit Union, Local 113
812 Wilson Avenue
Downsview, Ontario
M3K 1E5
Dear Mr. Moore:
Subject: Warranty Repair Work on New Buses
Upon ratification of the Collective Agreement, the General Superintendent – Bus Maintenance, and the respective Union Board Members, agree to meet, on a quarterly basis, to discuss any ongoing issues regarding warranty repair work completed by Contractor Daimler Buses North America ("DBNA").
In the interim, the Commission is agreeable to the following upon ratification of the Collective Agreement:
1. The Commission shall be responsible for completing all warranty repair work (excluding any retrofit or inspection/test work performed by DBNA) on Orion buses performed on Commission property that is not the responsibility of DBNA's subcontractors, unless the work is beyond the Commission's ability to complete for reasons of workforce, equipment or facilities.
2. All DBNA employees responsible for completing repair work on Pre-Delivery Inspections shall have a Local 113 bargaining unit employee present.
3. The Commission will enforce its safety rules, and expect strict compliance by DBNA.
4. DBNA will not be permitted to use the Commission's parts, unless authorized by the Commission. If DBNA requires a Commission part, the Commission may supply DBNA with the part on the condition that a Local 113 bargaining unit employee will assist in the process.
5. DBNA will not be permitted to use the Commission's tools or equipment, unless authorized by the Commission.
6. DBNA will only ferry buses under warranty, and/or test drive buses for performance related purposes.
Sincerely,
[Original signed by]
Scott Blakey
Executive Director of Human Resources
It is important to note that the full letter did not appear in the summary of the Memorandum that was prepared by the Employer for presentation to the membership by the Union. As is usually the case with respect to letters of understanding, only a cryptic summary was recorded. The cryptic summary of this letter read: "The Commission and the union agree to meet to discuss ongoing issues regarding warranty repair work." The maintenance employees, therefore, were not aware of the full content of the letter at the time they voted on the Memorandum.
The important considerations related to the warranty letter are, firstly, in contrast to the alternative proposals advanced by the Union with respect to warranty work, the letter constitutes a more nuanced response to a complicated and multidimensional issue; secondly, because the letter was not put before the maintenance department employees for consideration, even without modification, it would surely be seen by at least some maintenance department employees as an improvement to the summary of the Memorandum; and thirdly, the issue of warranty work, as identified by the Union, was a major reason for the rejection of the Memorandum. It follows, on an application of the replication principle, that the letter should be modified but with the Union maintaining the option of having it excluded from the collective agreement. If the Union remains of the view that, even as modified, the letter is unsatisfactory, it can opt to have it excluded from the collective agreement just as it secured the agreement of the Employer to have it excluded from the Memorandum.
The refinements to the warranty letter that will be made are:
1. clarification of the reference in the preamble to "in the interim;
2. deletion of paragraph 6 on the understanding that the present practices with respect to the performance of this work will continue; and
3. addition of clauses dealing with the training of bargaining unit employees and protection from layoff as a direct result of the performance of bus warranty work.
Having regard to all of the foregoing and to the factors that must be considered pursuant to subsection 15(2) of the Toronto Public Transit Service Resumption Act 2008, the award is as follows.
AWARD
The parties are hereby directed to enter into a renewal collective agreement for the term April 1, 2008 to March 31, 2011 that contains all the terms of the predecessor collective agreement save and except that it is amended to incorporate the provisions of the Memorandum of Agreement between the parties dated April 1, 2008, amended as follows:
1. The skilled trades allowance is to be increased by an additional $0.10 per hour to $0.35 per hour.
2. The letter of intent with respect to warranty repair work on new buses, dated April 1, 2008, shall be amended to read as per Appendix "A" to this award. The Union shall have 10 working days from the date hereof to advise the Employer that the letter is to be included within the collective agreement, failing which it shall not be included within the collective agreement.
I remain seized until such time as the parties enter into a formal collective agreement.
Dated this 8th day of October 2008 in the City of Toronto.
Kevin Burkett
KEVIN BURKETT
Appendix "A"
April 1, 2008
Mr. Les Moore
Amalgamated Transit Union, Local 113
812 Wilson Avenue
Downsview, Ontario
M3K 1E5
Dear Mr. Moore:
Subject: Warranty Repair Work on New Buses
The General Superintendent – Bus Maintenance, and the respective Union Board Members, agree to meet, on a quarterly basis, to discuss any ongoing issues regarding warranty repair work completed by Contractor Daimler Buses North America ("DBNA").
Unless the parties agree otherwise, the Commission is agreeable to the following:
1. The Commission shall be responsible for completing all warranty repair work (excluding any retrofit or inspection/test work performed by DBNA) on Orion buses performed on Commission property that is not the responsibility of DBNA's subcontractors, unless the work is beyond the Commission's ability to complete for reasons of workforce, equipment or facilities.
2. All DBNA employees responsible for completing repair work on Pre-Delivery Inspections shall have a Local 113 bargaining unit employee present.
3. The Commission will enforce its safety rules, and expect strict compliance by DBNA.
4. DBNA will not be permitted to use the Commission's parts, unless authorized by the Commission. If DBNA requires a Commission part, the Commission may supply DBNA with the part on the condition that a Local 113 bargaining unit employee will assist in the process.
5. DBNA will not be permitted to use the Commission's tools or equipment, unless authorized by the Commission.
6. The Commission agrees to meet with the Local 113 representatives to discuss training of the appropriate Local 113 bargaining unit employees on repairing and maintaining the Orion buses to ensure ongoing ability to maintain buses as per current practices.
7. The Commission agrees that employees shall not be laid off or terminated as a direct result of the performance of bus warranty work.
Sincerely,
Scott Blakey
Executive Director of Human Resources
The settlement matches everything that was agreed to on April 20 this year, except for an additional $0.10 per hour increase for skilled trades workers. Wage increases will rise 3% in each year of the contract, which will expire on March 31, 2011. Benefit improvements and WSIB top-ups match what was agreed to, as well. The cost of the contract is estimated to be $164 million over the three-year life of the contract.
On April 20 of this year, the TTC and its unions agreed to a tentative contract, subject to ratification. On April 25, Amalgamated Transit Union Local 113 announced that the majority of voting members rejected the agreement. A legal strike was announced for midnight. On Sunday, April 27, the Ontario Legislature convened an emergency session and passed back-to-work legislation and announced both parties would be subject to binding arbitration. TTC service resumed by 5 p.m. April 27, ending the 1-½ day strike.
Since that time, the TTC met three times with Mr. Burkett, laying out its position with respect to affordability and other non-monetary issues. Mr. Burkett sought, and received, time extensions from both parties as he worked through the complex issues before him. The TTC looks forward to moving ahead now with aggressive and exciting transit projects for the people of Toronto.
Backgrounder
IN THE MATTER OF AN ARBITRATION BETWEEN: TORONTO TRANSIT COMMISSION ("the Employer")
AND: AMALGAMATED TRANSIT UNION, LOCAL 113 ("the Union")
IN THE MATTER OF:
RENEWAL COLLECTIVE AGREEMENT
SOLE ARBITRATOR:
Kevin M. Burkett
APPEARANCES FOR THE EMPLOYER:
Christopher Riggs - Counsel
Dolores Barbini - Counsel
Jonathan Maier - Hicks Morley
Michelle A. Alton - Hicks Morley
Gary Webster - Chief General Manager
Scott Blakey - Executive Director, Human Resources
Kirsten Watson - Senior Director, Human Resources
Gemma Piemontese - Director, Employee Relations
Valerie Albanese - Employee Relations Consultant
Dave Dixon - Deputy General Manager - Rail
APPEARANCES FOR THE UNION:
Ian Fellows - Counsel
Dean Ardron - Counsel
Bob Kinnear - President/Business Agent
Kevin Morton - Executive Vice-President
Les Moore - Secretary-Treasurer
Paul Callaghan - Assistant Business Agent – Maintenance
Paul Prosser - Assistant Business Agent – Transportation
Jim Boyle - Executive Board Member – Birchmont/Malvern
Bill Chrisp - Board Member at Large (Maintenance)
Pino D’Armiento - Executive Board Member – Plant Department
William Fowlie - Executive Board Member – Automotive (Garages)
Frank Grimaldi - Executive Board Member – Arrow Road/Queensway
Ian MacKay - Executive Board Member – Wilson Bus/Subway
Bill Merlin - Executive Board Member – Hillcrest Complex
Philip Quibell - Executive Board Member – Eglinton/Bloor-Danforth/SRT
Rocco Signorile -Executive Board Member – Roncesvalles/Russell/W-Trans/Veolia
Clarke Smith - Executive Board Member – Collector/Clerical/TCT Clerks
Hearing held in Toronto, Ontario on September 6, 2008 -
I have been appointed under the Toronto Public Transit Service Resumption Act 2008 to serve as mediator/arbitrator in respect of a renewal collective agreement to the collective agreement between the parties that expired March 31, 2008. There is no dispute with respect to my authority in this regard.
By way of general background, the negotiating committees entered into a 99-page Memorandum of Agreement dated April 20, 2008, covering the three-year term from April 1, 2008 to March 31, 2011, that was made subject to the ratification of their respective principals. The Union's Executive Board recommended acceptance. However, seven of the sixteen members of the Union's Executive Board did not sign the April 20, 2008 Memorandum of Agreement and recommended that it be rejected. It is to be noted that the six members of the Union's Executive Board representing the maintenance department, along with the vice president of the local union responsible for dealing with benefit issues, comprised the group of abstaining members of the Executive Board. Finally, it is to be noted that approximately 42% of the bargaining unit work in the maintenance department. The remaining 58% of the bargaining unit work in operations. A Union membership vote was conducted on April 25, 2008 with, to repeat, these seven members of the Union's Executive Board urging the membership to disregard the recommendation of the Executive Board and reject the Memorandum of Agreement. The membership rejected the terms of the Memorandum of Agreement by a margin of 65% to 35%. A strike commenced on the evening of April 25, 2008 that was ended two days later, on April 27, 2008, with the passage of the Toronto Public Transit Service Resumption Act 2008.
Mediation was conducted on May 25 and 27, 2008. The Union identified a number of issues to be addressed within the three-year term of the Memorandum of Agreement. While the Employer held to the provisions of the Memorandum over its three-year term, it indicated a willingness to make certain improvements to the package over a four-year term. The Union was adamant in its refusal to consider other than the three-year term. Not surprisingly, the mediation proved unsuccessful. Hence, an arbitration hearing was convened on Saturday, September 6, 2008.
Positions of the Parties
The Union, citing the replication principle, argues that where a Memorandum of Agreement is rejected, the parties, absent statutory intervention as in this case, return to the bargaining table in order to "tweak" the Memorandum to make it more acceptable to the union membership. This is especially true, it is argued, where seven members of the Union's 16-member bargaining committee, including the full contingent of maintenance representatives, have refused to sign the Memorandum. In these circumstances, it is further argued, the Employer must be found to have taken a significant risk in tabling a final offer without a unanimous or close to unanimous recommendation for acceptance and must have done so in the knowledge that if the Memorandum was rejected, it would have to return to the bargaining table. The Union submits that whereas a rejected Memorandum of Agreement that has been unanimously recommended by a union's bargaining committee may constitute evidence of what those most familiar with the economic parameters that govern the relationship consider fair and reasonable in the prevailing circumstances, a rejected Memorandum of Agreement that has been endorsed by only half plus one of a union's bargaining committee cannot be relied upon as evidence of a fair and reasonable resolution. Accordingly, it is reiterated that, in the circumstances of this case, the replication principle requires a "tweaking" of the terms of the Memorandum in order to make it more acceptable to the Union membership.
The position taken by the Union, therefore, is that the predecessor collective agreement be amended in accord with the Memorandum of Agreement dated April 20, 2008, with the following additions and modifications:
1. remove the "unforeseen, extraordinary event" test from the eligibility for WSIB top-up benefits and accordingly eliminate the committee making determinations pursuant to that test;
2. bring forward to the date of the award the implementation of all improvements in benefits set out in the April 20, 2008 Memorandum of Agreement;
3. increase the skilled trades allowance from $0.10 per hour to $0.50 per hour, effective the date of the award. (The Memorandum of Agreement provided for an increase from $0.10 per hour to $0.25 per hour); and
4. with respect to warranty work, add the following to the collective agreement: "No warranty work will be assigned to non-bargaining unit personnel" or, in the alternative, "Warranty work will only be performed away from the Employer's premises" or, in the further alternative, "Any non-TTC person who attends at the workplace to perform warranty work will be accompanied by a bargaining unit member."
Items 1 and 2 (WSIB top-up benefit and implementation date of benefit improvements) are applicable to all bargaining unit members. Items 3 and 4 (skilled trade premium and warranty work) are applicable to maintenance department employees.
The Employer argues for a four-year collective agreement based upon the Memorandum of Agreement with an additional 3% across-the-board salary increase and some minor benefit improvements in the fourth year. The Employer maintains that I have the authority to extend the term to four years and that the application of the mandatory criteria set out in subsection 15(2) of the Toronto Public Transit Service Resumption Act 2008 supports the awarding of a four-year agreement. In further support, the Employer argues that a four-year term would provide extended labour peace; would be consistent with emerging trends in the public transit sector; and would be consistent with the principle of replication.
In regard to the replication principle, the Employer maintains that the Memorandum of Agreement constitutes the best evidence of what the parties were prepared to negotiate in free collective bargaining. The Employer disputes that the weight given to the Memorandum must be discounted because certain members of the Union's bargaining committee did not endorse it. The Employer takes the position that under the Union constitution, a majority is required in order to effect a Memorandum, as was the case here, and that once entered into, the weight that it is to be given is not determined having regard to a "sliding scale" based on the number of Executive Board members who have signed. Rather, it is submitted, the Memorandum, consistent with the jurisprudence, serves as the best evidence of a fair and reasonable settlement. Accordingly, the Employer seeks a four-year agreement comprised of the terms of the Memorandum for the period April 1, 2008 to March 31, 2011 with an additional 3% across the board and some minor benefit improvements for the period April 1, 2011 to March 31, 2012.
The Employer argues that none of the Union's additional arbitration proposals should be awarded. None of these proposals, it is submitted, is supported by evidence of demonstrated need and, moreover, they are largely inconsistent with prevailing trends among the comparators in the public transit industry. The Employer maintains that the awarding of any of these proposals would cause "excessive and unnecessary administrative and financial costs."
Discussion
There had been a divergence in the jurisprudence with respect to both the admissibility of a rejected Memorandum of Agreement and, if admissible, the weight to be given to it. However, the award in re: Thames Emergency Medical Services Inc. and OPSEU (2004) 129 LAC (4th) 192 (Burkett) definitively decides these issues. The Board in that case reasoned as follows:
It is also important to remember that interest arbitration is a substitute for free collective bargaining in the limited circumstances where the services supplied by the affected employees are too critical to society at large to risk interruption by strike or lockout. In these limited circumstances, interest arbitration is a substitute for economic sanctions as the final method of dispute resolution. Not surprisingly, it has long been accepted that the overriding objective of interest arbitration must be to replicate, to the greatest extent possible, the result that would otherwise have obtained had the right to strike or lockout not been removed. The issue before us, therefore, ought not to be decided on the basis of abstract statements of legal principle, but rather reference must be had to the manner in which rejected memoranda are dealt with by the parties to free collective bargaining as regulated by the statutory duty to bargain in good faith. As will be seen, under free collective bargaining a rejected memorandum establishes the framework within which post-rejection bargaining takes place.
One of the primary arguments advanced in support of the inadmissibility of a rejected memorandum is that the bargaining committee or agent cannot bind the principal. This is correct in a technical sense; however, as we have emphasized, collective bargaining is regulated by a statutory duty that establishes narrowing parameters as the bargaining progresses. The principal must be presumed to understand that a position once tabled by its bargaining committee and responded to becomes interwoven into the fabric of the bargaining. It is not surprising, therefore, that the rejection of a memorandum of settlement under free collective bargaining is not viewed as a signal to recommence bargaining afresh. Rather, the bargaining that follows a rejection of a memorandum of settlement is in the nature of a problem-solving exercise designed to "tweak" the terms of settlement in a manner that preserves the essential bargain while at the same time facilitating a reconsideration by the principals. Indeed, a party that sought to commence bargaining afresh following the rejection of a memorandum of settlement would leave itself open to a bad faith bargaining complaint. Conversely, a party that had put its best position forward in order to achieve a tentative settlement, only to have that settlement rejected by the other side, would, absent more, be immune from a finding of bad faith if it adopted the terms of the rejected memorandum as its firm and final position. The reality is that in free collective bargaining, the rejected memorandum remains front and centre. A party is not free to adopt any bargaining position it chooses following the rejection of a memorandum of settlement. Although it does not constitute a legally binding document, the memorandum establishes the parameters for the bargaining that follows the rejection, notwithstanding the fact that it was entered into by the bargaining committees acting as agents for the principals. Accordingly, if the primary objective of interest arbitration is to replicate free collective bargaining, as it is, a rejected memorandum of settlement must be admitted as the product of the prior good faith efforts of the parties to reach agreement.
As for the argument that the admission of the memorandum would undermine the without prejudice/confidential nature of collective bargaining, the fact is that the purpose of negotiating on a confidential/without prejudice basis is to protect the process from the intrusion of outside influence and to allow the parties to table "best" positions in the knowledge that if a "best" position does not advance the bargaining, it can be withdrawn. Once a tentative agreement is reached, however, the purpose of without prejudice/confidential negotiation has been satisfied and each side knows that a signed memorandum (which is a with prejudice/public document), attesting to their preparedness to recommend its contents, effectively waives any privilege that may have existed through the bargaining process. This argument, in favour of the inadmissibility of a rejected memorandum, therefore, ignores the reality of what a signed memorandum of settlement is and, as well, ignores the replication principle that underpins the interest arbitration process.
The policy reason in support of the inadmissibility of a rejected memorandum of settlement advanced by both arbitrator Teplitsky (re: Peel Board of Education (supra)) and counsel John Murray (Unratified Settlements, Labour Arbitration Yearbook, Butterworth's, 1992) is that its inadmissibility prevents it from becoming the starting point from which a subsequent interest arbitration award is crafted. Their thinking is that if a rejected memorandum is found to be inadmissible, there is no chance of it becoming the "floor," such that the principals must fear that by rejecting the memorandum they could do worse which, in turn, will have the positive effect of making rejection of the memorandum less likely. Their reasoning as to cause and effect is correct. However, at one and the same time, a ruling of inadmissibility destroys the framework for settlement mandated by the statutory duty to bargain in good faith (as the practical effect of inadmissibility is to render null and void the prior bargaining that produced the memorandum) and disregards any notion of replication (as under free collective bargaining, a rejected memorandum continues to set the parameters for the subsequent bargaining). Apart from the questionable implication arising from this policy position, that failing a ruling of inadmissibility an interest arbitrator is somehow incapable of balancing the issues put before him at the subsequent interest arbitration, this policy consideration ranks much lower in the hierarchy of policy considerations than does the preservation of the good faith bargaining framework and reliance upon the replication model.
Clearly, the rejected Memorandum of Agreement is admissible. The more difficult issue in this case concerns the weight it is to be given. This is so because, whereas usually a rejected Memorandum has been recommended by most, if not all, of a union's bargaining committee, seven of the sixteen members of this Union's bargaining committee refused to sign the Memorandum of Agreement and sought to have it rejected. Indeed, the full complement of the Union's maintenance department representatives refused to sign the Memorandum. The Employer argues that the split in the Union bargaining committee is immaterial and that the Memorandum nevertheless stands as the best evidence of a fair and reasonable outcome.
I disagree. The split in the Union bargaining committee, especially with all the maintenance department representatives dissenting, must render the Memorandum less persuasive as evidence of a fair and reasonable outcome, especially as applied to the maintenance department employees. Furthermore, in the normal course, an employer makes its final offer conditional upon the unanimous or close to unanimous recommendation of a union's bargaining committee. In this case, the Employer was content to take its chances on ratification with almost half of the Union bargaining committee recommending rejection. In these circumstances, the Employer must have understood that there was a strong likelihood of rejection and that, if rejected, there would have to be some modifications to the Memorandum in order to bring about a settlement.
This is not to say, however, that radical or extensive changes to this Memorandum are warranted. This Memorandum, which extends to some 99 pages, was the result of extensive bargaining that covered a myriad of issues. In addition to the administrative issues, many of which are both complicated and compromisory, the Memorandum provides for economic improvements, as follows:
* an annual compounded wage increase of three percent (3%);
* the introduction of a WSIB top-up provision that is available to employees who are injured at work as a result of an unforeseen extraordinary event. This top-up will provide eligible employees with compensation equal to seven percent (7%) of their net average earnings, as determined by the Workplace Safety and Insurance Board;
* an increase in the current skilled trade allowance in Article IV, Section 20 of the Collective Agreement from $0.10 for each regular hour paid to $0.25 for each regular hour paid;
improvements to the coverage and flexibility of certain benefits, including:
* an increase in vision care coverage from $275.00 to $300.00;
* the flexibility of using vision care coverage toward the payment of one routine eye exam to a maximum of $50.00 every two years;
* the flexibility of using vision care coverage toward the payment for corrective vision laser eye surgery;
* an increase in physiotherapy and chiropractic care coverage from $800.00 to $1,000.00. Coverage for each chiropractic visit also increased from $15.00 to $35.00;
* an increase in major restorative dental coverage from 50% of the costs to a maximum of $1,000.00 per person every 12 months to 50% of the costs to a maximum of $2,500.00 per person every 12 months;
* the flexibility of using major restorative dental coverage for dental implants;
* an increase in the scope and coverage of orthodontic benefits from up to 50% of the costs to a lifetime maximum of $3,000.00 per dependent to up to 50% of the costs to a lifetime maximum of $4,000.00 per employee and his and her dependents;
* an increase in the lifetime maximum benefit coverage for insulin pumps from $5,000.00 to $6,600.00;
* the introduction of coverage for smoking cessation products to a lifetime maximum of $300.00;
* an increase in basic group life insurance benefits coverage for all regular employees to age 65, from $35,000.00 to the amount of the employee's basic annual salary effective January 1, 2010;
* a further increase in group life insurance benefits coverage for all regular employees to age 65, from the amount of the employee's basic annual salary to two times the amount of the employee's basic annual salary effective January 1, 2011;
* an increase in accidental death and dismemberment benefits coverage for all regular employees to age 65, from $25,000.00 to two times the amount of the employee's basic annual salary;
* an increase in the current death benefit in the line of duty coverage, from the amount of two times the employee's basic annual salary to the amount of four times the employee's basic annual salary;
* an increase in long term disability benefits coverage from a monthly cap of $2,500.00 to $2,550.00 for claimants who complete the qualifying period on or after January 1, 2011; and
* an additional ad hoc adjustment in long term disability benefits coverage of $50.00 per month to all employees who receive these benefits as of December 31, 2010, not to exceed the monthly cap.
restrictions on the contracting out of bargaining unit work, including:
* a letter of intent that the Commission will not initiate any contracting out of Wheel Trans, bus, SRT, streetcar or subway service during the term of the new collective agreement, unless agreed otherwise;
* the imposition of a $10,000.00 penalty if the Commission violates the applicable contracting out provisions. Under the prior Collective Agreement, the amount of this penalty was fixed at $5,000.00;
* an amendment of Article IV, Section 16 of the Collective Agreement that will give the Union an additional meeting with the Commission to discuss alternatives to the contracting out of maintenance work;
* an amendment of Article IV, Section 16 of the Collective Agreement that will give the Union increased access to information regarding the Commission's Materials and Procurement tender website;
* renewal of the Commission's commitment in Article I, Section 37 of the Collective Agreement that employees shall not be laid off or terminated as a direct result of contracting out work that is normally performed by members of the bargaining unit;
* an agreement that the Commission will meet with the Union to discuss ongoing issues regarding the performance of warranty repair work.
The Memorandum of Agreement also includes a clause providing for an additional wage increase for operators should the wage rates at any of the GTA comparators move ahead of the comparable wage rates here. In addition, there are other improvements to the existing wage progression schedule, shift premium, travel time entitlements, collector shortage allowance, vacation scheduling, clothing and safety vest allowances and the reporting allowance for operators. Finally, the Employer has committed to honour benefit claims from the effective dates set out in the Memorandum even though some of these effective dates have passed.
This Memorandum of Agreement contains an impressive array of economic improvements, including those provisions relating to benefits. As for the timing of benefit improvements, it is not unusual for parties to a collective agreement to stage the implementations of benefit improvements in order to reach an overall agreement, as was done here. Notwithstanding the delayed implementation of some of the benefit improvements, the economic improvements under this Memorandum, taken as a whole, are above normative. Further, the general economic conditions have not markedly changed since the Memorandum of Agreement was entered into. Indeed, if anything, the economy and the economic outlook have worsened. It follows that if the three-year term is maintained, as the Union seeks, the cost implications of any changes that are made must be minimal.
The Employer seeks a four-year term for the reasons already articulated. The Union is adamant that the term must not extend beyond three years. The Union argues that these parties have historically negotiated three-year agreements; that a three-year term best removes collective bargaining from the Union's political cycle (and thereby better insulates the collective bargaining process from the Union's political process); and finally, that the Employer is not offering enough to "buy" a fourth year. Although it is not unusual for parties to a collective agreement to use the mechanism of term to bridge the economic gap between then, the arguments put forward by the Union with respect to term are persuasive. Accordingly, this award will be for a three-year term.
That said, the task at hand is to fashion a fair and equitable award having regard to the statutory factors applied within the context that presents itself here. The context is shaped by the following: firstly, a Memorandum that contains economic provisions, including benefits, that are above normative; secondly, a persuasive rationale for maintaining a three-year term; and finally, because it was the maintenance department representatives who refused to sign the Memorandum and campaigned against it, the need to focus upon the Memorandum as it applies to maintenance department employees as, in all likelihood, the parties themselves would have done had they been left to their own devices.
Given the attention that must be paid to the Memorandum as it pertains to maintenance employees, the Letter of Understanding with respect to warranty work requires some discussion. The warranty letter, which has application to the maintenance department, formed part of the Memorandum of Agreement that was entered into on April 20, 2008. However, shortly thereafter, the Union advised the Employer that the Union might seek to have the letter removed from the Memorandum because it had not been negotiated by the maintenance representatives and was being used as a reason to oppose ratification. The Employer agreed that if the Union sought its removal, it could be removed. The Union advised the Employer in July 2008 that it wished to have the letter removed and the Employer consented. The Union has advised that it found the letter unacceptable because:
1. it provides insufficient protection against bargaining unit work being performed by non-bargaining unit persons;
2. to the extent that protections exist, they relate to one contractor only; and
3. the letter explicitly provides for the performance of bargaining unit work by non-bargaining unit persons in paragraph 6.
The letter, as it appeared in the Memorandum of Agreement, read as follows:
April 1, 2008
Mr. Les Moore
Amalgamated Transit Union, Local 113
812 Wilson Avenue
Downsview, Ontario
M3K 1E5
Dear Mr. Moore:
Subject: Warranty Repair Work on New Buses
Upon ratification of the Collective Agreement, the General Superintendent – Bus Maintenance, and the respective Union Board Members, agree to meet, on a quarterly basis, to discuss any ongoing issues regarding warranty repair work completed by Contractor Daimler Buses North America ("DBNA").
In the interim, the Commission is agreeable to the following upon ratification of the Collective Agreement:
1. The Commission shall be responsible for completing all warranty repair work (excluding any retrofit or inspection/test work performed by DBNA) on Orion buses performed on Commission property that is not the responsibility of DBNA's subcontractors, unless the work is beyond the Commission's ability to complete for reasons of workforce, equipment or facilities.
2. All DBNA employees responsible for completing repair work on Pre-Delivery Inspections shall have a Local 113 bargaining unit employee present.
3. The Commission will enforce its safety rules, and expect strict compliance by DBNA.
4. DBNA will not be permitted to use the Commission's parts, unless authorized by the Commission. If DBNA requires a Commission part, the Commission may supply DBNA with the part on the condition that a Local 113 bargaining unit employee will assist in the process.
5. DBNA will not be permitted to use the Commission's tools or equipment, unless authorized by the Commission.
6. DBNA will only ferry buses under warranty, and/or test drive buses for performance related purposes.
Sincerely,
[Original signed by]
Scott Blakey
Executive Director of Human Resources
It is important to note that the full letter did not appear in the summary of the Memorandum that was prepared by the Employer for presentation to the membership by the Union. As is usually the case with respect to letters of understanding, only a cryptic summary was recorded. The cryptic summary of this letter read: "The Commission and the union agree to meet to discuss ongoing issues regarding warranty repair work." The maintenance employees, therefore, were not aware of the full content of the letter at the time they voted on the Memorandum.
The important considerations related to the warranty letter are, firstly, in contrast to the alternative proposals advanced by the Union with respect to warranty work, the letter constitutes a more nuanced response to a complicated and multidimensional issue; secondly, because the letter was not put before the maintenance department employees for consideration, even without modification, it would surely be seen by at least some maintenance department employees as an improvement to the summary of the Memorandum; and thirdly, the issue of warranty work, as identified by the Union, was a major reason for the rejection of the Memorandum. It follows, on an application of the replication principle, that the letter should be modified but with the Union maintaining the option of having it excluded from the collective agreement. If the Union remains of the view that, even as modified, the letter is unsatisfactory, it can opt to have it excluded from the collective agreement just as it secured the agreement of the Employer to have it excluded from the Memorandum.
The refinements to the warranty letter that will be made are:
1. clarification of the reference in the preamble to "in the interim;
2. deletion of paragraph 6 on the understanding that the present practices with respect to the performance of this work will continue; and
3. addition of clauses dealing with the training of bargaining unit employees and protection from layoff as a direct result of the performance of bus warranty work.
Having regard to all of the foregoing and to the factors that must be considered pursuant to subsection 15(2) of the Toronto Public Transit Service Resumption Act 2008, the award is as follows.
AWARD
The parties are hereby directed to enter into a renewal collective agreement for the term April 1, 2008 to March 31, 2011 that contains all the terms of the predecessor collective agreement save and except that it is amended to incorporate the provisions of the Memorandum of Agreement between the parties dated April 1, 2008, amended as follows:
1. The skilled trades allowance is to be increased by an additional $0.10 per hour to $0.35 per hour.
2. The letter of intent with respect to warranty repair work on new buses, dated April 1, 2008, shall be amended to read as per Appendix "A" to this award. The Union shall have 10 working days from the date hereof to advise the Employer that the letter is to be included within the collective agreement, failing which it shall not be included within the collective agreement.
I remain seized until such time as the parties enter into a formal collective agreement.
Dated this 8th day of October 2008 in the City of Toronto.
Kevin Burkett
KEVIN BURKETT
Appendix "A"
April 1, 2008
Mr. Les Moore
Amalgamated Transit Union, Local 113
812 Wilson Avenue
Downsview, Ontario
M3K 1E5
Dear Mr. Moore:
Subject: Warranty Repair Work on New Buses
The General Superintendent – Bus Maintenance, and the respective Union Board Members, agree to meet, on a quarterly basis, to discuss any ongoing issues regarding warranty repair work completed by Contractor Daimler Buses North America ("DBNA").
Unless the parties agree otherwise, the Commission is agreeable to the following:
1. The Commission shall be responsible for completing all warranty repair work (excluding any retrofit or inspection/test work performed by DBNA) on Orion buses performed on Commission property that is not the responsibility of DBNA's subcontractors, unless the work is beyond the Commission's ability to complete for reasons of workforce, equipment or facilities.
2. All DBNA employees responsible for completing repair work on Pre-Delivery Inspections shall have a Local 113 bargaining unit employee present.
3. The Commission will enforce its safety rules, and expect strict compliance by DBNA.
4. DBNA will not be permitted to use the Commission's parts, unless authorized by the Commission. If DBNA requires a Commission part, the Commission may supply DBNA with the part on the condition that a Local 113 bargaining unit employee will assist in the process.
5. DBNA will not be permitted to use the Commission's tools or equipment, unless authorized by the Commission.
6. The Commission agrees to meet with the Local 113 representatives to discuss training of the appropriate Local 113 bargaining unit employees on repairing and maintaining the Orion buses to ensure ongoing ability to maintain buses as per current practices.
7. The Commission agrees that employees shall not be laid off or terminated as a direct result of the performance of bus warranty work.
Sincerely,
Scott Blakey
Executive Director of Human Resources