GSB# 2018-3117
UNION# G-109-16-BSYS
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 - GO Transit)
Employer
BEFORE
Randi H. Abramksy
Arbitrator
FOR THE UNION
Alec Stromdahl Ursel Phillips Fellows Hopkinson LLP Counsel
FOR THE EMPLOYER
Daniel Fogel Hicks Morley Hamilton Stewart Storie LLP Counsel
HEARING
September 24, 2020 (by videoconference)
DECISION
This policy grievance involves a dispute between the parties concerning the interpretation of the parties’ collective agreement – specifically, whether a “change-off” is a “specific piece of work” that may be assigned to Standby bus drivers at the sixth hour of their standby shift.1
Facts
1The parties proceeded through an Agreed Statement of Facts, and supporting documents. Both parties reserved the right to introduce extrinsic evidence should I find the language to be ambiguous.
2The agreed facts are as follows:
The applicable Collective Agreement in respect to this matter is the June 2, 2014 to June 1, 2018 Collective Agreement found at Tab 1 of the Local 1587 Book of Documents.
On November 27, 2016 Local 1587 filed a grievance alleging that the Employer violated the Collective Agreement when it “failed to release stand by drivers following 6 hours of duty when those drivers have not been detailed a specific piece of work.” The grievance indicates that Local 1587 disputes the Employer’s position that “change-offs constitute a specific piece of work.” The grievance is attached at Tab 2 of the Local 1587 Book of Documents. This issue has not been arbitrated by the parties in the past. Metrolinx has no recollection of a grievance previously being filed by Local 1587 with respect to this issue.
The January 26, 2006 Bus Driver position description is at Tab 3 of the Local 1587 Book of Documents. It is agreed that the job description does not contain an exhaustive list of the functions that can be assigned to a Bus Driver.
Appendix A to the Collective Agreement governs the assignment and detailing of work to Bus Drivers. Article 1(d) of Appendix A states that Standby drivers “report for duty at a particular time and location on a contingency basis, to protect service in the event of late-reported sickness, missed driver assignments, unanticipated service requirements, or similar circumstances”.
In the common nomenclature of the workplace, a “Crew” refers to the scheduled work that a Bus Driver performs every week for a specified period of time, usually 4-12 weeks, known as a “Board Period”. A Bus Driver’s Crew is comprised of his or her daily assignments for the week. Those daily assignments are set out in a Run Guide which is issued by Metrolinx for each Board Period. The Run Guide for the January to April 2016 Board Period is found at Tab 1 of the Metrolinx Book of Documents.
At the beginning of every Board Period, Bus Drivers select or “sign” for a particular Crew based out of their garage in order of seniority. There are different kinds of Crews that a Bus Driver can sign for, including the following:
(a) The majority of Crews available are comprised of daily “Duties” which themselves are comprised of specific bus routes which require Bus Drivers to pick up customers at scheduled stops at scheduled times, with fixed break times. A Duty may include other work such as “Deadheading” (which is the scheduled driving of a bus without passengers from one station or garage to another as part of a bus route).
(i) In the Run Guide, Duties are listed (see pages 8-22 of the Metrolinx Book of Documents) and their constituent trips (including times and locations) and other work is set out in detail (see pages 23-1248 of the Metrolinx Book of Documents).
(ii) It is this type of “Duty” which is referred to in the second paragraph of Article 6(c) of Appendix A to the Collective Agreement as “a regular full time scheduled duty”.
(iii) The Notes section of some Duty documents refer to “Cover” (eg. pages 611 and 647 of the Metrolinx Book of Documents) which indicates that the Bus Driver is to remain available for a designated period to provide assistance as directed by the GO Transit Control Centre with unanticipated service requirements such as change offs (described below).
(iv) “Carry mail” indicates that mail is to be taken onboard a bus from one garage to another.
(b) Standby Crews, where the Bus Driver reports to a particular garage at a specific time each day and work is detailed to the driver on an “as needed” basis during the course of their shift in order to protect service in the event of late-reported sickness, missed driver assignments, unanticipated service requirements, or similar circumstances.
(c) Spare Board Crews, where the Bus Driver is assigned on a day-to-day basis to a Duty or to Standby. This is done by way of a daily “Slip” which is posted one day in advance since, unlike Standby work, this work is known to be available at least a day in advance.
The number of Standby Crews available will vary by garage or work location and Board Period. However, Schedule C, which contains working procedures for Bus Drivers, specifies at Article 19.2 that the crew roster of each Board Period must include a total of six full time Standby Crews and at least one at each of the five primary home base locations.
The Run Guide opens with a list of Standby Crews (see pages 6 and 7 of the Metrolinx Book of Documents). The start time and reporting location for the Standby Crew is set out there.
The Run Guide then lists each (non-Standby) Duty, setting out its alphanumeric code, the associated days of the week, the type of Duty, the location from which it is based, the start and end times for the Duty, the number of hours paid at full rate and at half rate, and the total number of hours of work involved. In terms of types of Duty:
(i) “REG” signifies a regular Duty, which is one that starts before10:00AM.
(ii) “SPLT” signifies a split shift. Pursuant to Article 36.4 of the Collective Agreement: “A split shift is a schedule which includes an unpaid break of two (2) hours or more in duration.”
(iii) “REL” signifies a relief Duty, which is one that begins sometime after 10:00AM.
The “Roster Report” at Tab 4 of the Local 1587 Book of Documents records the Crews that Bus Drivers signed for during the January 2, 2016 – April 1, 2016 Board Period, by garage. As in the Run Guide, the alphanumeric codes for Standby Crews begin with the letter “R”.
On March 9, 2015 Metrolinx issued Bulletin #15-46 at Tab 7 of the Local 1587 Book of Documents which indicates that, as per Article 6(c) of Appendix A to the Collective Agreement, Standby drivers must contact a supervisor after six hours at work at which time they will be detailed a “specific piece of work” which can be completed within the applicable spread limit or will be sent home.
Pursuant to Schedule C, Article 19.5, no weekday scheduled shift may be longer than 12 hours and 35 minutes. This limit is referred to in the workplace as a driver’s “spread limit.” On weekends the “spread limit” is 12 hours.
Standby drivers are at times detailed work part way into their shift that they cannot complete within their spread limit. When this occurs another Standby driver is assigned to complete the work, which may mean replacing a Standby driver who is waiting for a mechanic to arrive and repair a bus during a change off. Otherwise, the Unplanned Overtime process set out at Article 21.3 of the Collective Agreement is engaged.
When a bus breaks down during a scheduled route, Standby drivers will sometimes be asked to perform a “change-off”. This has consistently been the case for many years and over the terms of numerous Collective Agreements preceding the 2014-2018 Collective Agreement. The parties agree that nothing in the Collective Agreement prohibits this. However, Local 1587 takes the position that this is prohibited if the change-off is detailed in the circumstances described in Article 6(c) of Appendix A (i.e. at the six hour mark). In the context of Standby, performing a “change-off” commonly refers to:
(a) the Standby driver driving an empty, functional bus to the breakdown site; (b) providing the functional bus to the original driver who then continues on their scheduled route with the passengers on the functional bus; and
(c) the Standby driver waiting with the broken-down vehicle while mechanics are dispatched from the Fleet Maintenance department to examine the bus and assess the mechanical issue, and waiting with the bus until it is either repaired and can be driven or else is towed.
Pursuant to Article 6(a) of Appendix A to the Collective Agreement, Standby work is detailed in order of reporting (i.e. starting) time and not by seniority. When a Standby driver completes a detailed piece of work, the driver returns to the bottom of the list for subsequent detailing of work. It has been the parties’ normal practice for many years and over the terms of numerous Collective Agreements preceding the 2014-2018 Collective Agreement for Standby drivers to be assigned change-offs in order of reporting time and not by seniority and for those returning from doing a change-off to be placed at the bottom of the list. Metrolinx takes the position that this method of assigning change-offs and subsequent placement at the bottom of the list is required by Article 6(a).
Change-offs vary in the length of time they take to complete, and the Supervisor’s or Standby driver’s prediction of how long the Standby driver will be required to wait with the bus for the mechanics to arrive and perform their work may turn out to be inaccurate.
Mechanics in the Fleet Maintenance department are licensed to drive buses that are not carrying passengers.
Ms. Jackie Smithson estimates that from November 27, 2016 through November 2019 she has been asked as a Standby driver to perform approximately 20 change-offs after 6 hours of work that she was unable to complete within the applicable spread limit. Ms. Smithson estimates that during the same period she was asked to perform approximately 100 change-offs after 6 hours of work that she was able to complete within the applicable spread limit. Metrolinx has not yet had the opportunity to confirm the accuracy of those estimates.
Language similar to that found in Appendix A has been included in the parties’ Collective Agreement since 1986. Appendix A to the 1986-89 Collective Agreement is found in the Metrolinx Book of Documents at Tab 3.
Relevant Contract Provisions.
3ARTICLE 6 – MANAGEMENT RIGHTS
6.1.
Except as otherwise abridged by specific provision in this agreement, the Union acknowledges that the Employer shall be entitled to exercise all of the usual rights and functions of management, which rights include, but are not limited to, the right … to schedule and direct the work force, maintain order…direct… employees, …. Set the hours of operation and assign same and the various duties to be performed….
4ARTICLE 21 – OVERTIME
21.3. Unplanned Overtime
In making unplanned overtime assignments, the Employer shall first assign work by classification seniority from the employees who have submitted weekly unplanned overtime forms, full-time first and then part-time.
If the employer cannot fulfil the requirement from drivers available from the volunteer list, then the Employer may request volunteers from any available driver to fill the work. If sufficient volunteers are not available, then the overtime work shall be assigned to the more junior driver(s) available (by classification seniority) at the required location and whose other assigned work would not interfere, unless there are sufficient grounds for excusing such driver(s).
5APPENDIX “A”
BUS DRIVER ASSIGNING AND DETAILING PROCEDURE
In order to permit a reasonable means of administering certain aspects of the Collective Agreement in a consistent and equitable manner, the following procedures will apply.
- Definitions and interpretations
(a) “Assigning” shall relate to work which is developed and listed on the Drivers’ Reporting Board (‘the Slip”) by the Planning section (or alternate) with respect to the next day of operation.
(b) “Detailing” shall relate to work which is given out or “detailed” to a Driver by an Operations Supervisor after the “slip” has been posted, either prior to or during the day of operation.
(c) “Covering” shall relate to work involving the assignment or detailing of a Driver to remain at a specific location where there is a reasonable expectation that additional unscheduled service may be required to be operated.
(d) A “Standby” shall relate to work where a driver is assigned to report for duty at a particular time and location on a contingency basis, to protect service in the event of late-reported sickness, missed driver assignments, unanticipated service requirements, or similar circumstances.
(e) A “task” shall mean an activity that is uncrewed and nonrevenue.
- Preparation of Daily Slip
(j). Drivers assigned to “standby” duties will be required to accept any duties subsequently detailed to them within the normal applicable spread limit.
- Detailing of Standby Drivers
(a). Once a Driver has been assigned on the Slip to “Standby” status, any subsequent detailing of duties in not determined by seniority order or full-time versus part-time status. Work will be detailed to “Standby” drivers in order of their reporting time, regardless of the pay value involved. When a “Standby” driver completes a detailed piece of work and then resumes “standby” status, that driver will be placed “below” any other on-duty “Standby” drivers for subsequent detailing of work.
(c) After a “standby” driver has been on duty for six (6) hours of elapsed time, that driver must contact an appropriate supervisor and will either be detailed a specific piece of work which can be completed with the applicable spread limit or will be released for the day. At the discretion of an Operations Supervisor, “Standby” drivers may be released prior to the “six (6) hour” limit, but will be guaranteed to receive at least the minimum pay value originally assigned.
“Standby” drivers who are detailed a regular full time scheduled duty will be released at completion of the duty.
(d) Duties with known finishing times will first be detailed to a “standby” driver or drivers who can complete such duties within the applicable spread limit. If no such “standby” drivers are available, then the “overspread” work will first be offered to on-duty “Standby” drivers in order of seniority or on a voluntary overtime basis (subject to overnight rest provisions), prior to being offered to other volunteers.
- General Provisions
(b). Nothing in this Procedure will prevent the Employer from exercising its right to require employees to perform work in accordance with the Collective Agreement.
6SCHEDULE “C” – WORKING PROCEDURES FOR BUS DRIVERS ONY
ARTICLE 19 – SHIFT SCHEDULES
19.2
The crew roster for each Board Period shall include a total of six (6) full-time signed standby crews. There shall be at least one (1) A.M. assigned standby with Saturday/Sunday off-days at each of the five primary home base locations. There will be a minimum of three (3) P.M. assigned standby, one in each region (i.e., West, Central, East) with Saturday/Sunday off days.
Shift schedules may be comprised of known work and standby duties. When standby duties are attached to the end of a shift, a driver who has been on duty for six and a half (6.5) hours from first report, must contact an appropriate supervisor and will either be detailed a specific piece of work which can be completed within the applicable spread limit or will be released for the day.
19.5. No weekday scheduled shift may be scheduled to extend for longer than twelve (12) hours and thirty-five (35) minutes. In satellite locations, however, opportunities to improve full-time work may result in a mutual agreement to modify these parameters.
Saturday/Sunday/Holiday scheduled shifts may not be scheduled to extend for longer than twelve (12) hours.
The above time frames may only be extended when both parties mutually agree.
19.8. It is recognized that it is often necessary to adjust operating schedules with little or no notice due to unpredictable load factors, weather or traffic conditions, breakdowns, delays to connecting trains or buses, or other factors. When such circumstances occur, the Employer may change the work assigned within the scheduled shift without notice, and no premium pay is required for any change of the work assigned, timing of layovers, etc., within the scheduled shift, provided that the driver is guaranteed to receive the scheduled value of the original scheduled shift, or the scheduled value of the modified shift, whichever is greater. ….
Positions of the Parties
For the Union
7The Union submits that “during the normal course”, a change-off assignment may be assigned to Standby drivers, but that such an assignment is prohibited by Article 6(c) of Appendix A, at the sixth hour. It supports that contention on two bases.
8First, the Union argues that a change-off is not standby work because it is a “task” as defined in Appendix A, since it is an “activity that is uncrewed and nonrevenue.” It submits that under the principle of contract interpretation that all words in a collective agreement must be given meaning, a Standby driver under Article 6(c) can only be assigned a “specific piece of work that can be completed with the applicable spread limit” which does not include a “task”. The Union contends that a “specific piece of work” must be a specific part of a driver’s normal, revenue-generating crewed bus service. The collective agreement, the Union contends, differentiates between “work”, “duties” and “tasks.” Article 6(c), in the Union’s view, does not allow the Employer to assign drivers to a “task” at the sixth hour. The role of a standby driver, it submits, is to cover for a regular driver who is unexpectedly unable to report to work or is late, or a surge in passengers. It asserts that because a change-over is a “task” – a noncrewed, nonrevenue generating activity – it may not be assigned to a driver at the sixth hour, by definition. By including the definition of a “task” in Appendix A, the Union submits that the parties intended it to have meaning, and that Article 6(c) must be interpreted in light of this definition. The Union contends that the purpose of Article 6(c) is to provide relief to employees who have been on standby without work for six hours, if the Employer does not have appropriate “work” for them to do.
9The Union argues that I should reject a broad interpretation of the duties of standby drivers and “unanticipated service requirements” since it could lead to drivers being required to perform non-driver related work, such as cleaning up a soiled bus. A broad definition, it submits, gives the Employer permission to assign any duty to maintain service, a result not contemplated by the parties.
10The Union’s second basis for its contention is based on the principle that all words in a collective agreement must be given meaning. It argues that a “specific piece of work that can be completed in the spread” modifies and limits the work that may be assigned. It argues that it requires the supervisor to know the length of the assignment and if that is unknown, the work cannot be assigned. The Union submits that the experience of Standby Driver Smithson, as set out in paragraph 18 of the agreed facts, shows that it can be difficult to predict since in the three-year period between November 2016 to November 2019, there were twenty occasions when a change-over assignment at the sixth hour went beyond her spread limit.
11In support, the Union cites to Brown and Beatty, Canadian Labour Arbitration, 4:2100 Intention of the Parties; 4:2120, Presumption that All Words Have Meaning; Communications Energy & Paperworkers Union, Local 777 and Imperial Oil Strathcona Refinery (Policy Grievance), [2004] A. G.A.A. No. 44 (Elliot); Re Weyerhaeuser Chapleau and I.W..A., Canada Local 2995, 2001 CanLII 62056 (ON LA), 2001 CarswellOnt 3498 (Tacon).
For the Employer
12The Employer submits that Article 6(c) does not restrict management’s right to assign change-offs to standby drivers during the shift or at the sixth hour, as it has historically done without previous objection. It notes that this language or similar language has been in the parties’ collective agreement since at least 1986.
13In the Employer’s view, there is no basis to conclude that a change-off is not a “piece of work” or a “specific piece of work”. The Employer also points to the purpose of utilizing standby drivers “to protect service in the event of … unanticipated service requirements, or similar circumstances.” In its view, those words in their normal, everyday meaning, demonstrate that a bus break down is an “unanticipated service requirement”, and a change-off whereby a standby driver drives a new, functioning bus to the site is work properly assigned to a standby driver – whether at the start or during the shift.
14The Employer notes that although the term “task” is defined, it is not actually utilized anywhere in the collective agreement which, it submits, limits any guidance the definition may provide. While it accepts the view that all words must have meaning, it argues that does not support the Union’s contention that it limits the “work” that may be assigned at the sixth hour. The Employer notes that the term “work” or “duties” are not defined in the collective agreement and there is no reason to conclude that the terms are mutually exclusive, or that a “task” cannot be included in the work or duties of a standby driver. It points to Appendix A, Section 5(j) which states: “Drivers assigned to ‘standby’ duties will be required to accept any duties subsequently detailed to them within the normal applicable spread limit”. It also relies on Appendix A, Section 7 (b), that “[n]othing in this Procedure will prevent the Employer from exercising its right to require employees to perform work in accordance with the Collective Agreement.
15The Employer also disagrees with the Union that a change-over is an “uncrewed and nonrevenue” activity. It notes that standby drivers are a “crew” that employees select, as that term is used within Metrolinx, and that a change-off produces revenue by keeping the buses and passengers moving. When a bus breaks down, it submits, the standby driver is available and ready to drive a functioning bus to the site so the bus and its passengers may continue.
16The Employer also notes, as set out in the Run Guide, that even some non-standby crews have “change-offs” as part of their duties, as well as “dead-heading” – where an empty bus is driven between locations, which it submits, supports revenue generation. Consequently, it contends that even regular drivers are performing duties that go beyond strictly driving revenue-generating passengers.
17The Employer argues that there is no better evidence that a change-off is part of the “work” of standby drivers than the consistent past practice under Appendix A, Section 6(a) – which the Union does not dispute. It is undisputed that standby drivers have historically been assigned to change-offs - a “detailed piece of work” under this provision. It is only the assignment of such work at the sixth hour, under Appendix A, Section 6(c), that is challenged in this grievance. The consistent past practice of the parties, the Employer contends, precludes such a limitation from being read into the collective agreement.
18The Employer also relies on its management rights clause, Article 6.1, which requires a “specific provision” to limit the Employer’s ability to assign employees. It submits that there is no specific limitation in Appendix A and one cannot be read into the agreement based solely on the definition of the word “task.” In support, the Employer cites to H.R. Ottawa Employee Services Inc. and Public Service Alliance Canada, 2020 CanLII 59548 (LA ON); Brown and Beatty, Canadian Labour Arbitration, 4:2310 (Management Rights).
19The Employer contends that simply because a supervisor might guess wrongly that a change-over can be completed within the six hours (or six hours and thirty-five minutes) remaining in an employee’s spread is not a basis to preclude the assignment, as the Union submits. The fact that this happened to Driver Smithson twenty times in three years demonstrates that it is not common and the collective agreement provides the solution – another standby driver will be sent relieve the first one, or overtime will be offered. It submits that if a supervisor knowingly assigns a change-over that would go beyond the employee’s spread, that would be the basis for a grievance, but that possibility does not impact the interpretation of the collective agreement.
20The Employer agrees that Section 6(c) does serve to ensure standby drivers are not sitting around for twelve hours with nothing to do, but it does not preclude the Employer from assigning the employee to work that is required to protect the service due to “unanticipated service requirements, or similar circumstances.”
21In support, the Employer cites to Brown and Beatty, Canadian Labour Arbitration, 4:2110 Normal and Ordinary Meaning; 4:2100 Intention of the Parties; Re Ontario Power Generation and Society of Energy Professionals, 2012 CanLII 81972 (ON LA).
Reasons for Decision
22The goal in a contract interpretation is to determine the intent of the parties, based on the language used by the parties in the collective agreement. As stated by Arbitrator Surdykowski in Re Ontario Power Generation, supra at par. 17: “The parties to a collective agreement are presumed to say what they mean and mean what they say.” The words, of course, are paramount, but under the “modern approach”, the words must be read in their context, in their ordinary sense, considering their purpose and in harmony with the entire collective agreement.
23In this case, the Union submits that the parties intended to preclude the assignment of change-offs to standby drivers at the sixth hour under Appendix A, Section 6(c) due to the definition of “task” found in Appendix A. Having carefully considered the words used by the parties, the collective agreement as a whole, the purpose of standby work, and the agreed facts, I am not persuaded that the parties intended to preclude this type of assignment.
24First, I would note that the parties dispute whether “change-offs” are “uncrewed and nonrevenue” generating activities and therefore a “task”. The Union submits that standby drivers may only be assigned “work”, which means crewed, revenue-generating bus driving. There are several reasons why I am not persuaded by that argument.
25In the agreed facts, the parties included the Bus Driver position description, but also stated that it “does not contain an exhaustive list of the functions that can be assigned to a Bus Driver”. The Run Guides, moreover, include the assignment of “change-offs.” They also include “dead-headings”, which do not include driving revenue-generating passengers, as part of a bus driver’s regular responsibilities.
26The parties also defined “standby” “work” broadly - to include more than just filling-in for late reported absences or missed shifts, which the Union states is the prime responsibility of standby drivers. That may be, but the parties stated that standby work would also include, on a contingency basis, alleviating “unanticipated service requirements, or similar circumstances.” This definition, therefore, is significantly broader than just replacing absent drivers. The role is to assist with “unanticipated service requirements, or similar circumstances.”
27In addition, in the second paragraph of Appendix A, Section 6(c), the parties state: “’Standby’ drivers who are detailed a regular full time scheduled duty will be released at completion of the duty.” This provision, as set out in paragraph 6(a)(ii) of the Agreed Statement of Facts, refers to the regular bus routes performed by bus drivers. By including this provision as a separate sentence, it indicates that other work may be assigned to standby drivers which do not involve a “regular full time scheduled duty.”
28But even assuming, without deciding, that a change-off is a “task”, that conclusion would not preclude such an assignment. Although the word “task” is defined, it is not actually used in the collective agreement which limits its usefulness as a guide to the parties’ intent. Significantly, the parties did not define “work” or “duties” at all, and consequently did not exclude those terms from including a “task”. It is not a given that the terms are mutually exclusive, and that the “work” of a standby driver may not include a task.
29In contrast to reading in a limitation to what work may be detailed by including a definition of the word “task”, the parties, in Appendix A, Section 5(j), very broadly state: “Drivers assigned to “Standby” duties will be required to accept any duties subsequently detailed to them within the normal applicable spread limit.” This indicates that a broad array of duties may be assigned; it does not exempt “tasks.”
30I also find no principled basis to conclude the word “task” limits the assignment of change-offs to standby drivers under Appendix A, Section 6(c), but not Section 6(a). Paragraph 14 of the Agreed Statement of Facts states:
- When a bus breaks down during a scheduled route, Standby drivers will sometimes be asked to perform a “change-off”. This has consistently been the case for many years and over the terms of numerous Collective Agreements preceding the 2014-2018 Agreement. The parties agree that nothing in the Collective Agreement prohibits this. However, Local 1587 takes the position that this is prohibited if the change-off is detailed in the circumstances described in Article 6(c) of Appendix A (i.e., at the six hour mark). ...
31If the word “task” limits what may be assigned to standby drivers under Appendix A, Section 6(c), it would also limit it under Section 6(a), yet the Union acknowledges that such assignments are permissible. Section 6(a) provides that detailing of duties is not determined by seniority or full-time versus part-time status, but based on the drivers’ reporting times. It then states: “When a ‘Standby’ driver completes a detailed piece of work and then resumes ‘Standby’ status, that driver will be placed ‘below’ any other on-duty ‘Standby’ drivers for subsequent detailing of work.” Section 6(c) states that at the sixth hour mark the driver “will either be detailed a specific piece of work which can be completed with the applicable spread limit or will be released for the day.” Both provisions refer to being detailed a “piece of work” or a “specific piece of work.” If the word “work” cannot include a “task” under Section 6(c) as the Union submits, it cannot include it under Section 6(a). Yet historically change-offs have been assigned to Standby drivers, and there is “nothing in the collective agreement that prohibits this.”
32When the purpose of standby work is also considered, it makes sense that “change-offs” would be included in the potential duties of standby drivers. Appendix A, Section 1(d) defines “standby” as follows:
(d). A “Standby” shall relate to work where a driver is assigned to report for duty at a particular time and location on a contingency basis, to protect service in the event of late-reported sickness, missed driver assignments, unanticipated service requirements, or similar circumstances.
33A bus breaking down during a scheduled route is clearly an “unanticipated service requirement, or similar circumstance.” It makes sense, to protect service, that a Standby driver, who is present, available and qualified, be assigned to drive an empty, functional bus to the breakdown site, enabling the original driver and passengers to continue on their scheduled route. The fact that other employees – such as the mechanics in the Fleet Maintenance department – may be licensed to drive buses that are not carrying passengers, does not mean that Standby drivers may not be assigned this role.
34The Union urges caution in adopting a “broad interpretation” of the types of duties standby drivers may be assigned as it may lead to inappropriate assignments, such as cleaning a soiled bus. The Employer argues, in response, that even though standby drivers have been assigned to change-offs for many years, there is no evidence that it has led to improper assignments.
35The only issue in this case is whether change-offs may be assigned at the sixth hour under Appendix A, Section 6(c). Given the parties’ long history of assigning change-offs to standby drivers, the lack of any evidence of inappropriate assignments resulting from that, and the availability of the grievance procedure to deal with this type of concern that may arise in the future, I am not persuaded that this interpretation is a “broad” interpretation. It is an interpretation that is consistent with the language of the collective agreement, the parties’ practice and the purpose of having a crew of standby bus drivers.
36In Article 19.8, the parties’ recognize that “it is often necessary to adjust operating schedules with little or no notice due to unpredictable load factors, weather or traffic conditions, breakdowns, delays due to connecting trains or buses, or other factors.” The use of a crew of standby drivers is one of the ways that the parties elected to handle such issues “to protect service.”
37Finally, I note that Article 6 contains a management rights clause that gives management the right to “schedule and direct the work force… set the hours of operation and assign same and the various duties to be performed…” “[e]xcept as otherwise abridged by specific provisions in this agreement….” I am not persuaded that the definition of the word “task”, standing alone, may be viewed as a specific limitation on the Employer’s right to assign duties.
38Appendix A, Section 6(c), however, does provide some limitation on management’s ability to assign work at the sixth hour. After a standby driver has been on duty for six hours, the driver “will either be detailed a specific piece of work which can be completed with the applicable spread limit or will be released for the day.” The Union submits that if the supervisor cannot be certain that the change-off will be completed by the end of the employee’s spread, it cannot be assigned.
39This approach reads “can be completed” as “must be completed.” The words “can be completed”, in my view, means “capable” of being completed. If it is reasonably clear, from the outset, that a change-off is likely to go beyond the standby driver’s spread, that would not be a permissible assignment. But if, in good faith, the supervisor determines that it is reasonable to believe that the change-off can be completed within the remaining spread – six hours to six hours and 35 minutes, the assignment may be made.
40Paragraph 16 of the Agreed Statement of Facts states:
- Change-offs vary in the length of time they take to complete, and the Supervisor’s or Standby driver’s prediction of how long the Standby driver will be required to wait with the bus for the mechanics to arrive and perform their work may turn out to be inaccurate.
41The situation of Standby Driver Smithson seems to bear that out. Paragraph 18 states:
- Ms. Jackie Smithson estimates that since November 27, 2016 through November 2019, she has been asked as a Standby driver to perform approximately 20 change-offs after the 6 hours of work that she was unable to complete within the applicable spread limit. Ms. Smithson estimates that during the same period she was asked to perform approximately 100 change-offs after 6 hours of work that she was able to complete within the applicable spread limit. …
42Undoubtedly, there are many variables that would impact the amount of time that a driver must wait with the broken-down bus – the reason for the breakdown, how difficult it is to repair and if new parts are needed, the location, the weather, the traffic, the availability of a tow, etc. – some of which may reasonably be anticipated, and some which may not. To require certainty where no certainty exists would require different language than “can be completed”.
43In the Agreed Statement of Facts, the parties recognize that there are times standby drivers are assigned work that they cannot complete within their spread limit. Paragraph 13 states:
- Standby drivers are at times detailed work part way into their shift that they cannot complete within their spread limit. When this occurs another Standby driver is assigned to complete the work, which may mean replacing a standby driver who is waiting for a mechanic to arrive and repair a bus during a change-off. Otherwise, the Unplanned Overtime process set out at Article 21.3 of the Collective Agreement is engaged.
44This paragraph shows that “can be completed” does not mean “must be completed”. As long as the assignment is reasonably capable of being completed within the driver’s spread, it may be assigned at the sixth hour under Appendix A, Section 6(c).
45Appendix A, Section 6(d), reinforces this conclusion. Section 6(d) states:
(d). Duties with known finishing times will first be detailed to a “standby” driver or drivers who can complete such duties within the applicable spread limit. If no such “standby” drivers are available, then the “overspread” work will first be offered to on-duty “standby” drivers in order of seniority or on a voluntary overtime basis (subject to overnight rest provisions) prior to being offered to other volunteers.
46This provision shows that the parties’ contemplated duties “with known finishing times” as well as “overspread” work. That indicates that in Section 6(c), duties which “can be completed with the applicable spread limit” are not ones with clear “known finishing times”, but “can be” completed within the spread.
Conclusion:
47For all of the reasons set out above, I am not persuaded that the Employer is precluded from assigning change-offs to standby drivers under Appendix A, Section 6(c). Accordingly, the grievance must be dismissed.
Dated at Toronto, Ontario this 15th day of October, 2020.